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Caird v Caird

Caird v Caird

Case [2018] NZHC 1605 2 July 2018

Wills Act 2007

Testamentary Intentions

Informal Wills

Validation of Wills

Succession Law

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-926

[2018] NZHC 1605

UNDER the Wills Act 2007

IN THE MATTER OF

an application for an order that the will of Robert Leslie Caird be declared valid

BETWEEN

PETER LEONARD CAIRD AND ALASTAIR FREDERICK CAIRD

Applicants

AND

HOLLY CAIRD

Respondent

AND

GRAHAM ROSS BUTTERFIELD

Party in Support of Application

Hearing: 26 June 2018

Appearances:

P Maciaszek for Applicants

D Lester for Party in Support of Application S Clay for Directed to be Served

Judgment:

2 July 2018

JUDGMENT OF MANDER J

[1] The applicants, Peter and Alastair Caird, seek a declaration pursuant to s 14 of the Wills Act 2007 (the Act), declaring a document to be the valid will of their deceased brother, Robert Caird.

[2] Robert died on 8 August 2017. He had not executed a valid will. His immediate next of kin were the two applicants, being his surviving brothers, and another brother, Murray Caird, who predeceased Robert. Murray is survived by his

CAIRD v CAIRD [2018] NZHC 1605 [2 July 2018]

daughter, Holly Caird. In the event of intestacy, Robert’s estate will be distributed in equal shares between the applicants and Holly.1

[3] The document which is sought to be validated as Robert’s will is a note that was taken by his close friend, Graeme Butterfield, some two months before Robert’s death. The applicants bring their application to validate this document as Robert’s will on the basis it records the testamentary intentions of Robert. The application is opposed by Holly.

[4] The application is supported by a significant amount of evidence from relatives and friends of Robert, including Mr Butterfield. An affidavit from Holly and her mother was filed in opposition. None of the deponents were required for cross- examination and the application proceeded on the unchallenged content of the filed evidence.

Background

[5] Robert had no current partner, spouse, or children at the time of his death at the age of 65 years. His parents predeceased him. His immediate family were his brothers and their children.

[6] Throughout his life, Robert had a very close relationship with Graeme Butterfield. They met at secondary school and were described in the evidence as inseparable. They worked together on various farm blocks they developed and acquired adjacent farming properties. At one point, they farmed together in partnership. In more recent times, Mr Butterfield spent significant periods of each week living at Robert’s residential property at 49 Woodside Common (the Woodside Common property). After the Canterbury earthquakes, Mr Butterfield lived at the Woodside Common property for several years on a full-time basis.

[7] Indicative of the nature of their friendship, the trust they placed in each other, and the intermingling of their affairs, were the arrangements they made relating to Mr Butterfield’s acquisition of a block of land at Dunsandel on which Mr Butterfield

1 Administration Act 1969, s 77.

proposed to construct a dwelling. The land was acquired in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Caird v Caird

Details

AGLC: Caird v Caird [2018] NZHC 1605
Case: [2018] NZHC 1605
Decision Date: 2 July 2018

CaseChat Overview and Summary

In Caird v Caird, the High Court of New Zealand was asked to validate a document as the will of Robert Caird, who had died intestate. The applicants, Peter and Alastair Caird, sought a declaration that a note made by Robert's close friend, Graeme Butterfield, was his valid will. The note was intended to record Robert's testamentary intentions and was placed in a safe location with the intention of having it formalised as a will. The application was opposed by Holly Caird, Robert's niece. The court was required to determine whether the document appeared to be a will and whether it expressed Robert's testamentary intentions. The court found that the note did appear to be a will and that it expressed Robert's testamentary intentions based on the strong evidence provided by Butterfield and other deponents. The court validated the note as Robert's will, declaring it to be his last will and testament. The court also ordered that the applicants' costs be borne by the estate.

Orders