Cairns v Cairns - [2020] NZHC 2542

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2020-412-077

[2020] NZHC 2542

UNDER the Wills Act 2007

IN THE MATTER

of an application by NOELINE EDWA CAIRNS for an order that a document be declared a valid will of DAVISON BUTLER CAIRNS

BETWEEN

N E CAIRNS

Applicant

AND

J A CAIRNS AND OTHERS

Respondents

Counsel: J Stringer for Applicant

Judgment:

29 September 2020

(Determined on the papers)

JUDGMENT OF JUSTICE OSBORNE

This judgment was delivered by me on 29 September 2020 at 1.15 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

[1] This proceeding concerns the estate of the late Davison Butler Cairns (Davison) who died on 15 February 2019. His widow, Noeline Edwa Cairns

CAIRNS v CAIRNS [2020] NZHC 2542 [29 September 2020]

(Noeline), applies under s 14 Wills Act 2007 (the Act) for an order declaring documents to constitute a will.

[2] The respondents are Julie Cairns (Julie), Jane Boyd and Simeon Cairns, who are the three children of Davison and Noeline.

[3] Davison’s last valid will is dated 29 August 2014. By it, Noeline was appointed executor and was the sole beneficiary of Davison’s estate, provided she survived Davison. If Noeline did not survive Davison then the residue of the estate was to be shared by the three respondents.

[4] The main asset owned by Noeline and Davison was their home in Clyde (the Clyde home). As a result of estate planning advice, Noeline, Davison and the respondents agreed to an arrangement which saw Julie and her husband, Stephen Gee (Steve), buying the Clyde home. Davison and Noeline were to continue to have occupation rights under a written occupation agreement. The ultimate intent of the estate planning was to ensure that Noeline and Davison each held the sale proceeds of the Clyde home separately. Each would leave their share of the sale proceeds to their children. The intent was to prevent the jointly owned property vesting solely in one of the joint owners upon the death of the other.

The steps taken to implement the agreement

[5] Julie and Steve took independent advice from their own solicitors who produced a document called the “Cairns Family Asset Planning 2018”. That document, which was then provided to Davison’s solicitors, set out a plan where Julie and Steve were granted an option to purchase the Clyde home from Davison and Noeline. The plan, as originally framed by Julie and Steve’s solicitors, was not ultimately implemented, but a variation of the plan was. As a result, on 6 December 2018, an agreement for sale and purchase of the Clyde home to Julie and Steve was signed. That was followed on 18 December 2018 by an occupation agreement which recorded the intention was to ensure that Davison and Noeline had a family home to call their own while their health permitted them to reside there. Under the occupation agreement Julie and Steve were recorded as the primary occupiers.

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 Cairns v Cairns

Details

AGLC: Cairns v Cairns [2020] NZHC 2542
Case: [2020] NZHC 2542
Decision Date: 29 September 2020

CaseChat Overview and Summary

This case concerns the estate of Davison Butler Cairns, who passed away on 15 February 2019. Noeline Edwa Cairns, Davison's widow, applied under the Wills Act 2007 for an order to declare certain documents as Davison's valid will. The respondents are Julie Cairns, Jane Boyd, and Simeon Cairns, Davison and Noeline's three children. The central issue in the case was whether the Court could validate certain documents as Davison's last will, despite the existence of his 2014 will, which left everything to Noeline if she survived him, and otherwise to their children.

The Court needed to determine if the documents in question accurately reflected Davison's testamentary intentions, as per section 14 of the Wills Act 2007. The Court considered the evidence provided by Davison's solicitor, who admitted to an error in not updating Davison's will to reflect his 2018/2019 intentions. Davison had intended to leave his half share of the sale proceeds of the Clyde home (the main asset of the estate) to his children, not to Noeline. The Court concluded that Davison's intentions were clear and supported by the evidence provided.

The Court ordered that the proceedings be served only on the respondents and that the applicant's counsel file an amended application specifying the precise documents or portions of documents to be considered as Davison's will. The Court also scheduled the case for a hearing on 17 November 2020, with the option for the application to be determined on the papers if all parties agreed.

Orders