Clarke v Clements
[2021] NZHC 2716
•11 October 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2020-409-291
[2021] NZHC 2716
UNDER the Wills Act 2007 IN THE MATTER
of the estate of Trena Denise Ellis
BETWEEN
VELMA AILEEN CLARKE and MERVYN JOHN ELLIS
Plaintiffs
AND
TIMOTHY MASON CLEMENTS
Defendant
Hearing: 13-17 September 2021 Appearances:
G P Tyrrell for Plaintiffs
R W Raymond QC and J M McGuigan for Defendant
Judgment:
11 October 2021
JUDGMENT OF OSBORNE J
This judgment was delivered by me on 11 October 2021 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
CLARKE v CLEMENTS [2021] NZHC 2716 [11 October 2021]
Introduction
[1]The issue in this case is whether a couple’s wills were executed as mutual wills.
[2]Graeme and Denise Ellis married in 1971. They did not have any children.
[3]Graeme died on 12 June 2016. Denise died on 20 August 2019.
[4] This proceeding concerns the validity of Denise’s will dated 21 September 2017 (2017 will).
[5] The defendant, Timothy Clements (Timothy), is the executor of Denise’s estate and is sued in two capacities. First, as the executor and, secondly, in his personal capacity.1 Timothy is the son of Denise’s only brother, Martin Clements (Martin).
[6] The plaintiffs, Velma Clarke (Velma) and Mervyn Ellis (Mervyn), are the only siblings of Graeme.
[7] The plaintiffs seek a declaration pursuant to s 30 Wills Act 2007 (the Act) that Timothy holds half of Denise’s chattels and residuary estate on trust for them in equal shares and judgment for each of them of one-quarter of the value of the estate. They assert that the provisions of Denise’s will constitute a breach of a mutual wills arrangement entered into between Denise and Graeme. The provisions of wills executed by Denise and Graeme on December 2012 (2012 wills) mirrored one another (as had wills entered into by the couple in 1993 and 2002). By the 2012 wills, Denise and Graeme each left their estates to the other if he or she survived, subject only to a gift of jewellery, in Denise’s case, to her sister-in-law (Martin’s wife, Pamela). Failing survivorship, the estate was left to be divided as to one-half for Martin and as to one- half for Velma and Mervyn (one-quarter each).
1 As to which see below at [24].
The witnesses
[8]Ten witnesses were called:
Plaintiffs’ witnesses
(a)Mervyn Ellis — one of the two plaintiffs, Graeme’s older brother. He gave evidence of a close family relationship and of discussions with Graeme and Denise about personal matters including health, finances and their wills;
(b)Velma Clarke — the other plaintiff. She also spoke of a close family relationship;
(c)Julian Clarke — Velma’s son and Graeme’s nephew. He gave evidence of a close family relationship and discussions with his uncle and aunt about their estates and wills;
(d)Brendon Clarke — also a son of Velma and a nephew of Graeme. He spoke of a close family relationship and discussions with his uncle and aunt as to their estates;
(e)Frances Hill — a long-time friend of Graeme and Denise who spoke about their attributes and relationship, and discussions about wills;
Defendant’s witnesses
(f)Timothy Clements — the defendant, a nephew of Denise;
(g)Martin Clements — Denise’s brother, Timothy’s father;
(h)Robert D’Arcy Thomson — the solicitor (D’Arcy Thomson Law) who took over Graeme and Denise’s legal affairs from around May 2016 and leading up to Denise’s will instructions in 2017;
(i)Timothy Trollope — a partner in the law firm (Papprills) previously acting for Graeme and Denise; and
(j)Anthony Corcoran — a director of Corcoran Legal.
Denise’s and Graeme’s earlier wills
[9]Earlier wills of Graeme and Denise dating back to 1983 were produced.
Wills of 12 December 1983
[10] The wills executed by Graeme and Denise on 12 December 1983 differed from each other in the provision made, Denise predominantly providing for her brother, Martin, while Graeme (after a life interest to his parents) provided for charities.
Wills of 5 July 1993
[11] By their wills of 5 July 1993, Graeme and Denise each left their estate to the survivor of them. Failing survivorship, all chattels were gifted to Martin. The residuary estate was then to be divided into two equal shares, with one share passing to Martin and the other to be divided into three equal portions, with one share passing to Velma and the other two shares passing to charities.
Wills of 4 September 2002
[12] By their wills of 4 September 2002, Graeme and Denise each left their entire estates to the survivor of them. In the event of non-survivorship, all chattels were gifted to Martin. The residuary estate was to be divided into two equal shares, with one share to pass to Martin and the other to be held on trust, first for a period with Velma as income beneficiary and after that period to be distributed to Velma’s three children (Brendon, Jeffrey and Julian).
The 2012 wills
[13] On 12 December 2012, Graeme and Denise each executed wills the terms of which mirrored the other’s.
[14]In the event the spouse survived:
(a)the spouse was appointed executor and trustee;
(b)in the case of Denise, her jewellery was given to her trustee with the expression that the jewellery be kept within the Clements family line; and
(c)the residuary estate was left to the spouse.
[15]In the event the spouse did not survive the testator:
(a)Bevan Clarke and Martin Clements were appointed executors and trustees of the will;
(b)all personal chattels were given to Velma as to a quarter-share, Mervyn as to a quarter-share and Martin as to a half-share;
(c)the residue was given as to a half-share to Martin (if he survived the testator but otherwise to his son (the defendant) Timothy) and as to the remaining half-share to (the plaintiffs) Velma and Mervyn equally (but with a gift over to their surviving child or children).
Denise’s 2017 will
[16]Upon Graeme’s death in 2016, his estate accordingly passed to Denise.
[17]On 21 September 2017, Denise executed a new will (the 2017 will).
[18]In the 2017 will:
(a)the defendant (Denise’s nephew, Timothy) was appointed executor and trustee;
(b)the jewellery was given to Pamela Clements (Martin’s wife); and
(c)the residue was given to Martin (with gifts over in the event of his prior death).
The plaintiffs’ case — mutual wills under s 30 Wills Act 2007
[19] By their pleading, the plaintiffs expressly invoke s 30 of the Act as entitling them to claim from Denise’s estate. The claim is not pleaded in terms of the equitable doctrine of mutual wills.2 The claim is to be accordingly determined by reference to the threshold requirements set out in s 30(1) of the Act in relation to mutual wills.
The plaintiffs’ case — on the facts
[20] The plaintiffs say that from September 2002 Graeme and Denise had in place corresponding wills.
[21] The plaintiffs say the 2012 wills were also corresponding wills and constituted mutual wills in terms of s 30 of the Act. They say in particular Graeme and Denise had agreed and promised each other the survivor of them would divide their chattels and the residue of their estate equally between the two sides of their family, in accordance with the terms of the 2012 wills. They further say Graeme and Denise had agreed and promised each other they would not revoke or alter their wills in a way which would be inconsistent with that promise as to division.
[22] They say Denise, by executing the 2017 will, did not keep her promise. As a consequence, the plaintiffs have a claim under s 30(2) of the Act.
[23] Timothy denies the allegations as to the 2002 and 2012 wills being corresponding wills. He denies also the central allegations as to agreements and promises.
[24] The plaintiffs additionally claim against Timothy in his personal capacity, upon the basis that, through distributing the majority of Denise’s estate within six months after probate was granted, Timothy lost the protection provided by s 47(4) Administration Act 1969 and is personally liable for any amounts adjudged to be
2 As to which, see Lewis v Cotton [2001] 2 NZLR 21 (CA).
payable by him as executor. Timothy admits he distributed the majority of the estate to Martin within the prescribed six month period.
The facts — Graeme and Denise as a couple
Generally
[25] After their marriage in 1971, Graeme and Denise lived in Christchurch. They each had successful careers, Graeme as a builder and Denise with her own hairdressing businesses. Denise’s brother, Martin, gave evidence suggesting from his perception of the careers of the two — Denise in her own hairdressing businesses and Graeme essentially working as an employee at trade rates — that it was Denise who preponderantly grew their assets. But his evidence was based on a general understanding and not any direct knowledge of the financial details. It does not form a reliable basis for attributing the couple’s financial success more to one spouse than to the other. In any event what they built up was relationship property.3 I reject any intended suggestion that Denise had a right (moral or otherwise) to regard herself as having an entitlement greater than Graeme in their assets.
[26] Graeme and Denise lived in Helmores Lane and had for many years a bach in Charteris Bay. They had investment properties on Papanui Road and invested in shares.
[27] They did not have children of their own, a situation they had in common with their good friend, Frances (Fran) Hill and her husband. Mrs Hill explained that their bond led the two couples often to have conversations about their wills.
[28] Graeme and Denise enjoyed warm and close relationships with their relatives and friends. With the Hills, for instance, there were on average twice-weekly catch- ups over dinner, coffee or the like and holidays together both in New Zealand and overseas.
3 With no suggestion that the equal-sharing regime under the Property (Relationships) Act 1976 did not apply to all their assets.
The relationship with Graeme’s family
[29] Graeme’s sister, Velma, had what she described as a wonderful relationship with Graeme and Denise until Graeme’s death in 2016, with the two couples being part of each other’s lives. Family celebrations always included the other family. Velma described her relationship with Graeme as “particularly close”, including in the last five decades of their parents’ lives as the two of them worked in tandem to support their parents. A close relationship also developed between Velma’s three sons and Graeme and Denise.
[30] Graeme’s brother, Mervyn, was 12 years older than Graeme. He, his wife and children lived away from Christchurch for many years and since 1981 had been resident in Australia. Initially contact between the couples was mainly through visits of Mervyn back to New Zealand, most years, but over the last two decades Graeme and Denise made trips almost all summers to have two or three weeks in Queensland. There was clearly a very close, convivial relationship between the two couples. While Mervyn was cross-examined along the lines that the predominant reason for the visits of Graeme and Denise to Queensland may have been to catch up and spend time with a different couple, it was clear from the detailed responses which Mervyn gave (also substantially supported in Mrs Hill’s answers) that Graeme and Denise’s visits to Queensland were preponderantly catch-ups with Mervyn and his wife.
[31] Brendon and Julian Clarke, two of Velma’s sons, also gave evidence of a close and warm relationship between the families — Julian referring to Graeme and Denise as having been “a large part of my life for as long as I can remember”. Contact was regular, approximately fortnightly in Brendon’s case and “dozens of … times each year” in Julian’s case. The families always got together at Christmas as well as for birthdays and other special celebrations.
[32] The way in which Graeme and Denise generally presented themselves to their family was consistently described by the plaintiffs’ witnesses, and I accept their evidence in this regard. Their relationship as a couple was perhaps best summed up by Graeme’s sister, Velma, in these words: “Graeme and Denise were a lifelong strong couple. Deeply committed to one another, thoughtful and caring.”
[33] Towards Graeme’s family they were also a fond and caring couple, as they were to their close friends such as Mrs Hill. These were very close relationships.
[34] Of the two, Graeme was the more outgoing or open in his approach — for instance, happy to chat about life decisions with his older brother. The evidence indicates that Graeme tended to lead discussions in which he and Denise were involved with others.
[35]Denise was described in these terms by Mrs Hill, which I accept:
Denise never ever let anyone get to close to her, as a friend or emotionally. I would say that I probably knew her as well as anyone. She said to [me] on many occasions that she envied the closeness that I had with my five siblings and their families.
[36] Mervyn described her in similar terms — “more private and less forthcoming [than Graeme]” — and a person who was able to clearly indicate when her mind was made up or when she thought someone was wrong. As Mervyn stated, and I accept, “Denise was not a person who would allow something that occurred in front of her that she disagreed with to pass without comment”.
The relationship with Denise’s family
[37] Martin stated that he and Denise had a close sibling relationship, and that he and his wife had regular contact with Graeme and Denise, living on the same street for about 20 years. His evidence did not point towards a very close emotional relationship, however, with a number of observations that related to Denise’s personality, including for instance:
(a)“Denise was a person who held very strong views and had a very direct manner. She was strong willed and could be bossy”;
(b)“Denise had very high expectations of the people around her, in particular, of me and Graeme. Sometimes this used to grate on me”. “Denise regularly sought my opinion [in relation to home refurbishment], although rarely took any notice of it”.
(c)In relation to Graeme and Denise as a couple, Martin stated that they “could speak very sharply about friends and family when they were not around”. He continued that “they had strong views of what people were like and often made comments about people behind their backs, usually just after they had left”. Martin stated that he did not care for this habit.
There was a distinct “that’s just how she was” to Martin’s evidence in relation to Denise, he explaining that there were “many fond comments to this effect” at her farewell gathering.
[38] There is no reason to doubt the reliability of what Martin relayed — it is no easy task to speak openly about the negative attributes of a sibling, particularly after their death. Martin’s observations about Denise are consistent with what Graeme’s family saw in her and recounted, although Martin identified in more detail how Denise’s tendencies manifested themselves.
[39] The fact that in their discussions with Martin, Graeme and Denise appear to have been prepared to speak sharply — disloyally — about friends and family seems to have been their tendency particularly when with Denise’s side of the family. The witnesses from Graeme’s side of the family related no similar conversations. Mrs Hill, a long-time and close friend of Denise in particular, found Denise not to be one to share emotions very well. Velma’s experience of her brother and sister-in-law — a lifelong strong couple deeply committed to one another, thoughtful and caring — indicates a slightly different experience to that of the side of them that Martin saw and did not care for.
[40] Martin, who had enjoyed his own success in industry, was clearly viewed by Denise and Graeme as someone to whom they could reliably look for support in their affairs. From 2002 Martin was the substitute attorney for each of them under enduring powers of attorney both in relation to their personal care and welfare and their property. The connection between Graeme and Denise on the one hand and Martin on the other is clearly reflected in the provision consistently made by will for Martin through 1983, 1993 and 2002.
[41] Martin says that as Graeme approached his death in June 2016, Graeme asked him to look after Denise and to help her manage their house project. Martin promised to do so. Martin was subsequently to attend all site meetings with Denise and to assist with numerous attendances relating to the rebuild. Denise took a detailed approach to the project, and the house won a Canterbury architectural award.
[42] Martin spoke also of the period from mid-2017 during which Denise became troubled with a sore shoulder which was found to need surgery. That led in December 2017 to the discovery of Denise’s ovarian cancer. With Denise’s overall prognosis poor, Martin and Pamela gave her practical support over the following months of treatment.
[43] Martin in his evidence spoke of how little he saw of Graeme’s side of the family after Graeme died but that was entirely consistent with the way Graeme and Denise had operated as a couple, and (following Graeme’s death) is also consistent with Martin’s observation that Denise discouraged visitors, refusing to invite people to visit even when Pamela and he encouraged her to do so. Unsurprisingly, in this period it was to “her side” of the family that Denise looked for support and, I find, such support was readily given.
[44] Timothy, Martin’s son who was named as Denise’s executor, also gave evidence of growing up with frequent contact with Graeme and Denise during the Helmores Lane years (from when he was one year old to 19 years old) and at Charteris Bay. He spoke of a close relationship with his aunt and uncle and of Denise taking a keen interest in how he was going through the years. He recognised it as he attended university and later lived in Sydney for a period he saw Graeme and Denise less frequently but said he maintained a close and loving relationship. When he returned with his wife to Christchurch in 2003, his family, including children, saw Graeme and Denise on all significant occasions such as birthdays.
The rigid separation of social circles
[45] In the evidence called by the plaintiffs and Timothy respectively, there was what superficially appeared as a disjunction. The plaintiffs’ evidence was of little evident contact on the part of Graeme and Denise with Denise’s family, whereas
Timothy’s evidence was little evident contact on the part of Graeme and Denise with Graeme’s family. Through the examination of the various family members, it became clear at trial that the understanding each side of the family had was a product of the way that Graeme and Denise ordered their lives. The two sides of the family had virtually nothing to do with each other during Graeme and Denise’s marriage, it apparently being their preference to have their social contact with each side of the family separately. That conclusion was driven home by the evidence of Timothy who stated:
I do not recall ever seeing Velma, Mervyn, Brendon or Julian at Helmores Lane, or at Charteris Bay. I also do not recall Denise or [Graeme] ever discussing the Clarkes with me. I do not think I would recognise Velma or Mervyn if I walked past them in the street and, prior to Denise’s funeral gathering, I would have said the same in relation to Julian and Brendon. I can only assume that Denise and Graeme kept their family and social circles quite separate.
[46] I am satisfied on the evidence that, notwithstanding the lack of visibility which each side of the family had into the relationship of the other with Graeme and Denise, both sides of the family enjoyed good relationships with Graeme and Denise. Further, those relationships were such that Graeme and Denise, to the extent that they felt comfortable, were prepared to discuss quite frankly aspects of their thinking and intentions.
[47] There was an unfortunate hint in the evidence of each side of the family that the other may have been overstating the closeness of their relationship with Graeme and Denise. I did not find on the evidence any such overstatement. To the contrary, it is clear that the two sets of relationships were close, supportive and enduring. The evidence clearly points to Graeme and Denise, as a couple, treating each side of the family with a similar level of affection and being so treated reciprocally.
Discussions of Graeme and Denise about their affairs generally
Financial affairs
[48] It was a theme of Timothy’s case that any discussion of the nature alleged by the plaintiffs as to Graeme’s and Denise’s intentions in relation to their wills or
financial situation were unlikely to have occurred given a reticence on the part of Graeme and Denise to discuss such matters. Martin, for instance, stated:
We did not discuss financial affairs with Graeme and Denise. We never once had a conversation with Graeme and Denise about their (or our) wills or financial situation.
That is, I accept, how it was with Denise’s side of the family — she (and equally Graeme) did not initiate such discussions with her family.
Family trusts
[49] A number of witnesses gave evidence as to having discussion with Graeme and Denise about family trusts. It is common ground that Graeme and Denise engaged in such discussions on a number of occasions. Mervyn was told by Graeme and Denise that they had previously decided not to create a family trust although people had suggested it. (Mervyn placed that discussion in the context of an occasion when Graeme and Denise stated that they had instead agreed that each would look after each other’s side of the family when the first of them had “gone” — (as to which see below at [60])).
[50] Julian, a lawyer who has practised from 1992, was also involved in discussions with Graeme and Denise about the wisdom of family trusts (as discussed below at [54(b)]).
[51] Martin for his part also related discussions which he and his wife had with Graeme and Denise around family trusts, as a result of Graeme and Denise wondering if a trust structure would be useful to them.
[52] It is clear that, to the extent of exploring whether they should have a family trust, Graeme and Denise were prepared to discuss that with informed members on both sides of the family.
Earthquake insurance and claim
[53] The beautiful brick house owned by Graeme and Denise in Helmores Lane had been severely damaged in the Christchurch earthquakes. The insurance claim took
years to resolve. It is, again, clear in relation to this that Graeme and Denise were prepared to discuss this aspect of their affairs with other family members. Mervyn, although based in Australia but with regular trips to Christchurch, would receive updates on the latest insurance developments. Martin was, for his part, directly involved in assisting Graeme and Denise work through that process.
Discussions of Graeme and Denise about their estates before 2013
[54] I summarise the evidence of the plaintiffs’ witnesses in relation to discussions concerning Graeme’s and Denise’s will intentions before 2013 when Mervyn says there was a discussion about “final wills”. This summary of evidence on the topic of discussions about wills relates only to evidence of the plaintiffs’ witnesses as the evidence of both Martin and Timothy is that there were no similar discussions with them.
(a)Mervyn
Mervyn in his evidence did not speak of any discussion occurring with Graeme and Denise about their wills before 2013. He spoke generally about “chat about life decisions” referring specifically to matters such as changing jobs and buying houses and cars. Mervyn confirmed to Mr Raymond QC in cross- examination that he had not particularly had any detailed discussion with Graeme about wills before 2013.
(b)Julian Clarke
Julian Clarke, who has practised for many years as a lawyer, said Graeme and Denise had spoken to him about their estate planning on a number of occasions. The first was during a holiday together in 2014 after Julian’s wedding in Brisbane. He says on that occasion the conversation turned to changes that having children made to one’s life and Graeme made the rueful comment that they were not able to have children, going on to say “so that means that one day you boys will get the benefit”. Julian said he recalled Denise nodding positively to that statement, she being part of the whole conversation.
Julian said on a number of other times afterwards in either their home or Julian’s home that conversation turned to discussions about Graeme’s and Denise’s estate. Julian stated the conversation varied, Graeme sometimes saying “you boys will benefit once we are gone”, or Denise, if speaking, saying something along the lines “we will be leaving half to each of our families”. Julian described these conversations as having occurred about once every three years or so.
Julian described a later conversation he had on a “semi-professional” basis with Denise and Graeme about estate planning. Over a cup of coffee in their sunroom, he said that Denise asked him “what do you think about family trusts?” whereupon he worked through the three main reasons why a couple in their position in life might have a family trust. The third reason related to the protection of assets for family members. Julian said in that context Denise stated they had only very recently done their wills and “we are going to leave everything half and half to our families”. Julian described this conversation as consistent with the three or four earlier conversations he had had over the previous 10 years. He said he therefore told Graeme and Denise he could not see any benefit for them in creating a family trust. He stated he had “zero uncertainty whatsoever” from either Graeme or Denise about what was going to occur — otherwise his advice about family trusts would have been different.
It was only in January 2020 that Julian came to learn of the existence of Denise’s 2017 will.
That was followed by a telephone call to Martin which became heated. Julian asking Martin to consider a variation so as to provide a split of assets between the families on the basis of prior discussions with Graeme and Denise, but Martin expressing disbelief in the suggestion that Denise would have spoken about her will.
(c)Brendon Clarke
Brendon said that over the years he recalled Graeme and Denise both making comments from time to time about how “you boys” (or similar words) would
inherit from them. He said the first occasion was when he was about 14 in around 1980.
He recounted a later occasion around 2015 when he had been doing some gardening work at Graeme and Denise’s property. He said they, again, brought the conversation around to their lack of children and how it had affected their lives. He said the conversation evolved into what all of that meant for them going forwards and Graeme said “[t]he outcome of it all is that one day this will belong to you boys”, Denise adding, in her cheeky way, “well, there’s not much point leaving it to the dogs is there Fred?” (Fred was the nickname used by Graeme and Denise for each other). Brendon stated he remembered this conversation well as it meant a lot to him given that Denise in particular did not lightly share her private views and decisions.
Brendon related also one other specific conversation, prior to the Canterbury earthquakes in the autumn of 2009 or 2010. While he was having a beer with Graeme and Denise in their sunroom, one of them talked in the course of the conversation about passing their estates to “you boys one day”.
Brendon described these references as strong and clear in his mind, the discussions being clear but the exact dates not.
(d)Fran Hill
Mrs Hill shared a very close relationship with Graeme and Denise, having first met Denise in 1973 (that is two years after Denise’s marriage to Graeme). She said over 40 plus years the two couples would have seen each other twice a week on average, and holidayed together many times, including in Queensland. The two couples had in common the fact that neither had children (Mrs Hill’s only child passing away at the age of eight years). Both couples however had siblings and their siblings had children. Mrs Hill and her husband were particularly close to Velma’s three boys as they grew up.
Mrs Hill said the couples would discuss their lack of children perhaps once a year. As they grew older, over the last 15 years, a number of those
conversations would turn from the lack of children to what the couples were providing in their wills.
Mrs Hill stated in particular:
Because of our closeness as friends and the similarity in our lives as couples without children, when our conversations about Wills occurred, one couple would often outline their thoughts and then the others would respond in kind. For as long as I can remember Graeme and Denise’s response would be to say “once the last of us is gone we will be splitting it between our families” or similar comments.
As this was his way, Graeme would sometimes add something humorous like: “well my family will be well off after I’ve gone, providing we haven’t spent it all along the way, isn’t that right Fred?” (And (that being her nickname) Denise would agree or not.)
Mrs Hill said that over a significant number of those conversations neither Graeme nor Denise contradicted the other or said anything slightly different, despite the fact that, if Denise were not in complete agreement with something, she would certainly let you know.
[55] Mr Raymond, in his cross-examination of both Brendon and Julian Clarke, referred to the fact neither Graeme nor Denise made any provision for Velma’s children in any of their wills. It was put to both witnesses that the conversations (with Graeme and Denise) they were relating were not consistent with the wills Graeme and Denise had in place at the various times before 2012. It was not, however, put to either witness directly that they were mistaken or incorrect as to the conversations. For his part, Brendon recognised the point Mr Raymond was making but emphasised the conversation was not about “a Will per se” but was instead a conversation about “one day this will be yours”. Julian, cross-examined along parallel lines, similarly replied that the flavour of the conversation was that “one day this will be yours. It’s gonna end up with [you]”. In that way, Julian suggested the 2013 discussion was consistent with the 2012 will (providing for Velma rather than her sons).
[56] Julian was, however, cross-examined by Mr Raymond in relation to the content of a letter he sent to Martin shortly after the telephone call on 31 January 2020. In the letter Julian referred to his surprise and deep disappointment that Denise had created a will after Graeme died which left everything to her side of the family. Julian stated
that that would be a change from the wills they had previously made. He then stated Denise’s will differed significantly from “the comments made to me (and others) in conversations with them whilst they were alive”. As the evidence had been that neither Brendon nor Mervyn had discussions with Julian about Denise’s estate until after July 2020, Mr Raymond asked who the “others” were to whom Julian was referring. Julian replied he was just referring to “like my wife for example” who would have been in the room. He accepted the “others” did not refer to the family members who had given evidence.
[57] In his brief cross-examination of Mrs Hill, Mr Raymond again did not suggest to the witness that she was mistaken or incorrect in her evidence as to what Graeme and Denise had said about splitting [their assets] between the families once the last of them had gone. Mrs Hill agreed the comments as to splitting the assets may have been made after 2012. That said, it was clear from Mrs Hill’s evidence, she referring to discussions which had taken place “for as long as I can remember”, that there had been similar comments made to her by Graeme and Denise over the years. The specific discussion as to “once the last of us is gone, we will be splitting it between our families” may have occurred after the 2000 wills were executed but the earlier years would have involved what Mrs Hill referred to as “similar comments”, as reflected in the humorous exchange identified in Mrs Hill’s brief of evidence (above at [54(d)]).
2013 discussions of Graeme and Denise about their estates
[58] The first evidence given as to Graeme and Denise discussing their will provisions in 2013 was that of Julian, flowing on from the discussion he says he had in relation to family trusts (above at [54(b)]).
[59] Mrs Hill, in response to the cross-examination as to whether the comments about splitting between the families may have been after 2012, accepted that as possible.
[60] Finally, there was evidence from Mervyn of a discussion with Graeme and Denise during the trip he made to Christchurch in 2013. Mervyn stated:
One morning during that trip, Graeme phoned and asked me to come around for lunch as they had something they wanted to discuss. Over lunch, after general chit chat conversation about how the other people were that I had visited and an update on their latest insurance developments, they began talking to me about what was going to happen to their assets after they died.
They told me that since I have been over from Australia, they had done some “final Wills”. They raised this very directly, which was not normal for them.
Denise, Graeme and I had spoken a number of times previously about the challenges that we all faced with dealing with our assets after we died because I have three children to a previous wife and my current wife Colleen has three children to a previous husband. We had previously had some conversations, particularly in Australia, about how Colleen and I should deal with our estate and how they should deal with theirs. Sometimes we talked about whether it was right to benefit one needy child more than others for example.
They told me that over the last few decades they had done a number of Wills as their life evolved and their wealth had grown. They told me that over the last few years they had toyed with the idea of bypassing their siblings and instead leaving their estate directly to their nephews and nieces on both sides of the family (half to Tim on Denise’s side and half to 3 children of mine and 3 children of Velma’s on Graeme’s side). However, they had decided that leaving it the nephews and nieces was potentially too direct and they had ended up deciding that they wanted us siblings (Martin (Denise’s brother), Velma and I) to receive it in the first instance and to be able to choose how to get it to the nephews and nieces from there.
Denise said that they had recognised the best thing to do was to split everything in half and leave half to the siblings in each family and so that was what they were going to do and that was what their Wills provided. Denise also said that this was pretty much what their previous Wills had done but that these final ones were simpler and completely “balanced”.
They told me that they had earlier decided not to create a family trust even although [sic] people had suggested it. Instead, they had agreed that each of them would look after each other’s side of the family when the first of them had “gone”.
It sounded incredibly reasonable to me. In fact, to be honest at the time I wondered why they were bothering to tell me. They weren’t seeking my approval as they were talking about an agreement and a set of Wills they had already implemented, but they clearly felt it was important to tell me that these were the arrangements.
Given our previous conversations over the years having them tell me that they had agreed to split their estate in half and give one half to each side of family was not unexpected although I appreciate that they had gone to the effort of sharing this decision with me.
In fact, to play the “Devil’s Advocate” I actually responded by asking them if they wanted to leave some money to charity as part of their provisions and did they have any charities that they felt particularly close to such as where Graeme had worked? Their answer was a strong “No”. Denise said that they had previously left money to charity in their previous Wills. What they had
done now was go back to basics and do one final will that was nice and simple and would never need to be replaced.
I nodded in agreement as it makes sense to me. And seeing as they had specifically wanted to talk their Wills through with me and seemed to be seeking my approval, I gave it to them and reassured them that I thought that was exactly the right thing to do, that if I was in their shoes I would do the same thing and that if we siblings were still alive, we would make sure that our children received and appreciated any inheritance that they receive. They said thanks and that if it ever did happen, they would be happy for the inheritance to go straight to my children, or for me to use it or half in half – just whatever was needed at the time.
I think our years of holidays together and numerous previous discussions about my own Will position made it that bit easier for them to raise their decisions with me, and I was quite chuffed that they actually wanted to share this with me. I suppose I had previously discussed the intended distribution of my estate with them.
Denise and [Graeme] were both directly involved in this conversation. They were adamant that their estate would be shared [equally between] each side of the family when they had both passed. They were informing me of what they had already agreed. Being the oldest brother, I never really expected that they would both die before me. It was a terrible shock when I found out that Graeme had Asbestosis. Certainly, looking back to 2013 when we had those conversations, I never really actually thought that I would receive an inheritance from them. Instead, I thought that my share would go straight to my children by virtue of the fact that either Graeme or Denise would outlast me.
[61] Mervyn is 90 years of age. Mr Raymond cross-examined him as to matters of detail which he had got wrong. Mervyn for instance accepted he was 12 years older than Graeme, rather than the six years referred to in his briefed evidence. He described that as a “typo error”.
[62] Mr Raymond also suggested to Mervyn he may have been overstating the extent of time that Graeme and Denise spent with him and his wife in Australia, because Graeme and Denise in fact stayed with “their good mates Sandra and Ken”. Mervyn absolutely disagreed with that proposition, saying that Graeme and Denise stayed far more times with his wife and him than they did with anyone else when they came to Brisbane. Relevantly, in her cross-examination as to Graeme and Denise’s visits to Australia, Mrs Hill stated that Graeme and Denise had not gone to stay with Sandra and Ken so much in later years, staying either with Mervyn and his wife or with Mrs Hill and her husband (when they were in Queensland). Mr Raymond also cross-examined Mervyn as to whether Mervyn had included particular statements in
his briefed evidence because that was what Julian wanted him to say. Mervyn rejected that proposition.
[63] Mr Raymond further cross-examined Mervyn as to his inability to remember the detail of previous conversations over the years, as contrasted with his particular recall (in September 2021) of the specifics of the 2013 discussions. Mervyn responded that his specific memory was because he was leaving to go back to Brisbane the following day, and that is how he remembers the meeting distinctly.
[64] Mr Raymond also cross-examined Mervyn as to whether he may have transposed or merged some discussions which he had with Graeme and Denise about what was contained in the wills of Mervyn and Colleen, providing for half shares to go to their respective children. Mervyn did not respond directly but answered:
We touched on it very, very occasionally but not very broadly because I didn’t really think it was their, their business to know what we were doing.
[65] In the cross-examination as to the detail of the 2013 conversation, Mr Raymond asked a number of questions of Mervyn to suggest that his detailed version of the conversation was not credible or reliable. He, for instance, suggested to Mervyn, given Graeme and Denise had not previously discussed their wills with him and Mervyn had not been included in any of their wills, it was odd at their ages he should be asked around in that way to have a specific discussion. To that particular question Mervyn responded he did not find it particularly odd as he was waiting to go back to Australia the next day — Graeme and Denise had invited him around for lunch to say goodbye and at that time told him what their wishes were with regards to their final will.
[66] In terms of the specific discussions, in cross-examination Mervyn gave further explanation of what was said, including:
(a)it was Graeme who started the conversation by saying they had a few things to discuss and one was their final will which they had drafted;
(b)Denise then chipped in and said “Yes this is what we’ve done to make it simple and easy for everybody” (that being, Mervyn stated, the “tone of the conversation”);
(c)they said this was their final will — it was a simple arrangement setting out the previous will that they had drafted up previously;
(d)it was “clean cut, just a simple Will, half and half for each estate, that’s what they wished”;
(e)Graeme and Denise both said “we left half of our estate to each side of the family to make it clear and simple”; and
(f)Mervyn added — “it was definitely the final Will succeeding all other previous Wills that they had drawn up”.
[67] By comparing the quotations Mervyn attributed to Graeme and Denise in his evidence-in-chief and in his cross-examination respectively, it is apparent (and scarcely surprising) that the passages cannot be relied on as direct quotations of exactly what was said — as Mervyn himself explained in relation to what at first appeared to be a quotation — “that was the tone of the conversation”.
[68] When it comes to discussions in which Graeme and Denise engaged about will provision, there is something which first appears as a disconnect between discussions related by Mervyn, Brendon and Julian on the one hand and those related by Velma on the other. Velma did not speak of Denise and/or Graeme having any discussions with her about their will provision or intentions. On the other hand, Mervyn, Brendon and Julian each spoke of discussions relating to such matters. Mr Raymond, for Timothy, invited the Court to view the absence of any evidence of Velma as to a discussion about will provision as undermining the credibility of Mervyn, Brendon and/or Julian as to alleged discussions. I have carefully considered their evidence both against the possibility that they have individually exaggerated or misreported the nature of discussions or that there has been some collaboration which has resulted in the giving of somewhat similar recollections. There are significant differences of detail in the
discussions which each witness relayed. The more general discussions relayed by Brendon and Julian fall short of the more specific discussion relayed by Mervyn. And, very significantly given her independence, Mrs Hill gave evidence which I accept as to Graeme and Denise for as long as she can remember saying that “once the last of us is gone we will be splitting it between our families” or similar comments. Mrs Hill added that neither Graeme nor Denise once contradicted the other or said anything slightly different, notwithstanding that if Denise was not in complete agreement with something she would certainly say so. I am satisfied that in the course of discussion before 2013 between Graeme and Denise and the plaintiffs’ witnesses (Mervyn, Julian, Brenda and Mrs Hill), indications were given that there was to be a division of their estates between the two families.
[69] I deal with Mervyn’s evidence as to his 2013 discussion with Graeme and Denise below at [94].
Graeme’s and Denise’s estates
[70] By virtue of her survivorship, Denise took the entirety of Graeme’s estate. The most significant assets were the Helmores Lane property, a commercial property in Papanui Road, a substantial share portfolio, funds in bank accounts and chattels.
[71] On Denise’s death, Tim completed a statement of the assets and liabilities in her estate as at 12 September 2019. The assets listed included:
(a)Helmores Lane $2,750,000;
(b)Papanui Road $660,000;
(c)Share portfolio $352,145;
(d)Chattels $370,000; and
(e)Bank accounts $80,176.59.
[72] Denise was recorded as having no liabilities (apart from a $524.94 credit card debit) at the time of her death.
[73] In summary, the value of Denise’s estate, in terms of the valuations provided by Timothy to the Inland Revenue Department, was slightly above $4,200,000. (Jewellery, the subject of a specific gift to Pamela, is not separately identified in Tim’s statement of assets). Denise’s estate has been distributed in accordance with the 2017 will. Timothy indicated in his evidence that he had effectively distributed the entirety of the estate within six months after probate was granted.
Mutual wills under the Wills Act 2007
[74] The provisions in s 30 of the Act concerning mutual wills apply to the wills executed by Denise and Graeme in December 2012.4
[75]Section 30 of the Act provides:
30 Mutual wills
(1)This section applies when—
(a)2 persons make wills in which each—
(i)disposes of property on which the 2 persons have agreed; and
(ii)makes the disposition in a way on which the 2 persons have agreed; and
(b)each promises the other that he or she will not—
(i)revoke the will without making another will that keeps the agreement in the same or a better way; or
(ii)change the will in a way that fails to keep the agreement in the same or a better way; or
(iii)dispose, during his or her life, of some or all of an item of property that the will specifically disposes of; and
(c)the first of them to die (person A) keeps the promise; and
4 By reason of their having been executed after 1 November 2007 —Wills Act, s 40(2)(r).
(d)the second of them to die (person B) does not keep the promise.
(2)A person who would have received a benefit from person B’s will if person B had kept the promise may claim from person B’s estate any part of the benefit that person B’s estate does not provide.
(3)The agreements referred to in subsection (1)(a), and the promise referred to in subsection (1)(b), may be made orally, in writing, or electronically.
[76] Before the enactment of the Act (and still in relation to wills signed before 1 November 2007), the equitable doctrine of mutual wills governed issues arising in this area. I adopt the conclusion that s 30 of the Act should be viewed as essentially a codification of principles applying under the equitable doctrine, for the reasons briefly summarised in Cleary v Cockroft.5
[77] It is therefore of assistance to set out and adopt the principles which were established in New Zealand in relation to the doctrine, centred on the Court of Appeal’s judgment in Lewis v Cotton.6 I adopt my summary of requirements as set out in Wilson v Saunders:7
From Lewis v Cotton, and the authorities there referred to, the imposition of a constructive trust based on mutual wills has two fundamental requirements:
(a)There was an underlying consultation and coordination between two testators which resulted in an agreement or an arrangement as to how they would make their respective wills (which were then made).8 I will refer to this as the requirement for “corresponding wills”. Reference is sometimes made to “mirror wills” and, more ambiguously and confusingly, to “mutual wills”.
(b)There must have been a contract or mutual understanding (intended to bind each testator to a future cause of action) that neither testator would revoke the will provision or deal with the property in a manner inconsistent with the provisions of the corresponding wills.9
[9] In addition to the above two requirements, there are requirements of proof and of evidence. The mutual understanding of the two testators:
(a)must be sufficiently certain in its terms that the Court can enforce the terms;10
5 Cleary v Cockroft [2020] NZHC 1452 at [66].
6 Lewis v Cotton, above n 2, at [42] per Blanchard J (delivering the judgment of the Court).
7 Wilson v Saunders [2016] NZHC 1211, (2016) 17 NZCPR 404 at [8]–[9].
8 Lewis v Cotton, above n 2, at [46].
9 At [43] and [46].
10 At [52]; In re Oldham; Hadwen v Myles [1925] Ch 75 (Ch).
(b)may be oral or in writing and may be contained in the wills themselves or proved by extraneous evidence,11 and may be proved either by express agreement or by conduct, such that … the mutual understanding may be implied;12
(c)does not require consideration in the usual sense;13
(d)is not established by the mere fact that the testators made corresponding wills;14 and
(e)is to be established on the ordinary civil standard (balance of probabilities) but is to be scrutinised, as a claim over the property of a deceased person, with very great care.15
[78] To these observations it is also helpful to add matters adverted to by Doogue J in McNeish v McArthur (McNeish):16
(a)establishing the alleged agreement or understanding may depend on the drawing of reasonable and probable inferences17 — although her Honour cites the tests set out in a number of authorities such as “certain and unequivocal”,18 the standard recognised by the Court of Appeal in Lewis v Cotton at [9(e)] above is the ordinary civil standard, albeit requiring careful scrutiny. That means, as her Honour observed, that because the concept of a mutual will is inherently improbable it takes more cogent evidence to persuade a court to find that the balance of probabilities lies in that direction;19
(b)arrangements have been found to fall short of constituting mutual wills where they simply reflect an “honorary agreement” or a “mutual expectation or desire”;20 and
11 Lewis v Cotton, above n 2, at [45].
12 At [23]–[30]; Birmingham v Renfrew (1937) 57 CLR 666 (HCA) at 682–683 per Dixon J.
13 Lewis v Cotton, above n 2, at [45].
14 At [46]; Gray v Perpetual Trustee Co Ltd [1928] AC 391 (PC) at 400.
15 Wills Act, s 30 applies to wills signed on or after 1 November 2007 — see s 40(2)(r).
16 McNeish v McArthur [2019] NZHC 3281, [2020] 2 NZLR 287.
17 At [21]–[23].
18 At [23].
19 At [24], citing Legg v Burton [2017] EWHC 2088 (Ch), [2017] 4 WLR 186 at [28]–[29].
20 At [25]. For “honorary agreement” see Lord Walpole v Lord Orford (1797) 3 Ves Jun 402 at 420, Cleary v Cockroft, above n 5, at [80]. For “mutual expectation or desire” see Re Goodchild (dec'd) [1997] 1 WLR 1216 (Ch) at 1225; Cleary v Cockroft, above n 5, at [80].
(c)persons in receipt of legal advice are presumed to know or have been told that wills are revocable instruments (although other evidence may establish the existence of the contract or mutual understanding required to constitute mutual wills).21
[79] The final observation I make in relation to mutual wills is a practical one captured by Blanchard J in delivering the judgment of the Court of Appeal in Lewis v Cotton:22
[48] Any such commitment is unlikely and undesirable in modern times, which explains why true “mutual wills” are now so very infrequently found. Indeed, they have never been at all common. There are preferable ways of achieving the intended result without the unfortunate inflexibility which might, if found to exist, fail to allow for significant changes in circumstances, including the impost of changes to duties and taxes.
[49] As a result, the Courts are very slow to find “mutual wills” just because the parties have made corresponding wills. We agree with Anderson J’s view about the assumption normally underlying the wills of married couples in this country … . For a particularly hard case of rejection by a Court of the notion that corresponding wills indicate an agreement or arrangement that the survivor will not revoke see Re Oldham; Hadwen v Myles [1925] 1 Ch 75.
Submissions
For the plaintiffs
[80] For the plaintiffs, Mr Tyrrell said there was a pattern of wills over the years. He referred to the corresponding nature of wills evidencing a shared attention over many years. He noted the effective splitting of the estates with the later wills splitting residue between the families.
[81] Mr Tyrrell referred to the affectionate regard which Graeme and Denise had for each side of the family, albeit conducted in separate social circles. Until Denise’s last will, their provision for the two sides of the family flowed from those relationships.
21 At [20]; Flocas v Carlson [2015] VSC 221 at [186].
22 Lewis v Cotton, above n 2.
[82] Mr Tyrrell noted a certain logic in Graeme and Denise discussing their wills in 2013 with Mervyn, given the previous, very open discussions about more general matters relating to future plans and aspirations. Mr Tyrrell submitted the 2013 conversation as relayed by Mervyn, in the detail he discussed it, reflected natural interactions over those issues.
[83] Mr Tyrrell submitted the evidence of Julian, Brendon and of Mrs Hill in relation to provision for the two sides of the family and to “splitting it” was consistent with what Mervyn says he was told in 2013 and provides support for the reliability of Mervyn’s version of events.
[84] Mr Tyrrell recognised whether the Court can be satisfied that the 2012 wills were mutual wills is ultimately a factually intensive exercise. He referred to the observations of Doogue J in McNeish as to the process of drawing reasonable and proper inferences from other facts.23
[85]Mr Tyrrell submitted two previous decisions of this Court are instructive.
McNeish v McArthur
[86] Mr Tyrrell first referred to the facts in McNeish.24 It was found in that case there was no evidence of anything beyond an honorary agreement or mutual expectation or desire, with no implied or inferred agreement as to non-revocation.25 This was despite the couple telling family details of their wills and that the estate was to be split 50/50 between the two families.
[87] Mr Tyrrell submitted the facts in McNeish are distinguishable. He referred to Doogue J’s observation that “any lawyer worth their salt would have advised them that wills are revocable instruments”.26 He observed on Mr Trollope’s evidence it was clear no advice was given to that effect when Graeme and Denise executed their 2012 wills. Mr Tyrrell submitted this was a significant difference between the cases. Mr
23 See [50] above, citing McNeish v McArthur, above n 16.
24 McNeish v McArthur, above n 16.
25 At [38]–[50].
26 At [51].
Tyrrell also observed Graeme and Denise’s descriptions of “final will” or “never need to be replaced” in relation to the 2012 wills further distinguished the case from McNeish. Finally, Mr Tyrrell submitted Graeme and Denise’s not having children is a further point of distinction between the two cases. On Mr Trollope’s evidence, a blended family situation is a factor which might prompt a lawyer to consider a mutual will. Mr Tyrrell submitted here, absent a blended family, it was understandable that Graeme and Denise would trust each other to follow through on their agreement.
Henson v Gandar
[88] The second case to which Mr Tyrrell drew particular attention is Henson v Gandar (Henson).27 Ms Dorman and Mr Henson had families from previous marriages. The plaintiffs (Mr Henson’s children) asserted the couple had made mutual wills in 1998 whereby the estate of each was left to the other who would then leave their estate in four equal parts between the three Henson children and Ms Dorman’s sole daughter. Following Mr Henson’s death, and the passing of his entire estate by survivorship to Ms Dorman, Ms Dorman executed a fresh will by which her estate was divided into two equal parts, with her daughter now receiving a full half share and the Henson children receiving a one-sixth share each.
[89] Clifford J found mutual wills were established on the evidence. In 2002 the couple had made arrangements for all children to spend a weekend at their home. That involved two travelling from overseas. The couple told the children (accurately) of the terms of their wills. Clifford J found the couple had explained the arrangements would not be changed, Mr Henson using the words that the arrangements were “set in stone”.28
[90] Mr Tyrrell submitted the words used by the couple in Henson have a similar meaning to the reference to “final wills” quoted by Mervyn in his evidence, particularly when Denise had also said the couple had gone “back to basics and [done] one final will that was nice and simple and would never need to be replaced”.
27 Henson v Gandar [2016] NZHC 841.
28 At [26].
[91] Mr Tyrrell submitted the evidence here enables the Court to be satisfied that Graeme and Denise made to each other a promise that they would not revoke their 2012 wills. He disavowed any intention on the part of the plaintiffs to characterise Denise’s subsequent revocation of her will as an act of dishonesty — he recognised Denise’s revocation could have occurred for any number of reasons, particularly having regard to her declining health in her last years and the increasing involvement with and support from Martin and his family while she maintained little or no contact with the Clarke family.
For the defendant
[92] For Timothy, Mr Raymond referred to the varying measure of provision, through Graeme and Denise’s wills, for Graeme’s family over the years. He submitted, from the pattern of will-making, it is clear Graeme and Denise understood that wills are revocable instruments. He submitted, as noted by the solicitor who took instructions for Denise’s final will, the instructions were straightforward and seemed unremarkable.
[93] Mr Raymond critiqued the evidence of Brendon and Julian in relation to conversations with Graeme and Denise. He submitted it was unlikely that Denise would have “aunt-nephew” conversations with Graeme’s family but not her own. He observed, in any event, the discussions relayed by Julian and Brendon did not involve suggestions that current wills were final or irrevocable. He noted also the inconsistency between comments as to all assets going to the boys and the contents of the wills as they stood at the time with those conversations. He suggested the discussion Mrs Hill related about splitting estates between the families is to be seen as a “high level” discussion about mutual expectation or desire.
[94] Mr Raymond submitted Mervyn’s evidence as to the 2013 lunch-time discussion must be scrutinised with great care having regard to a number of matters:
(a)the age of the events being recalled (eight years earlier);
(b)the oddness of such a discussion occurring for the first time when Mervyn had not previously known the contents of Denise’s and Graeme’s wills;
(c)the inconsistency between Denise’s alleged comment as to previous wills being pretty much the same when they were not;
(d)the inconsistency between Mervyn’s allegation as to consistent discussions of leaving assets half/half to each family with what was in the 1983 and 1993 wills;
(e)factors pointing to Graeme’s and Denise’s evident belief that they were free to change the terms of their will;
(f)the fact Mervyn had not informed Julian of the 2013 lunch-time discussion before the proceedings were issued despite its significance;
(g)the inconsistency between Graeme and Denise telling one side of the family but not the other about an important matter such as irrevocability;
(h)Mervyn’s acceptance in cross-examination that Graeme’s and Denise’s statements were about their understanding “at a point in time”;
(i)Mervyn’s errors on particular details such as the age gap between himself and Graeme;
(j)the possibility that Mervyn was confusing his own will provisions with his discussions with Graeme and Denise;
(k)difficulty Mervyn had in recalling other details around his visit to Christchurch in 2013; and
(l)Mervyn’s inability to remember in any detail other conversations he had with Graeme and Denise about personal matters such as health or finances.
[95] Mr Raymond referred to the statutory requirements for mutual wills and to the case law. He submitted the strictness of s 30 of the Act reflects the nature of the cause of action — the justification for intervention by the Court is to prevent a surviving will-maker from benefitting from their own fraud (that is, benefitting from the agreement without accepting the corresponding burden).
[96] Mr Raymond submitted the caution which the Courts exercise in finding mutual wills arises because:
(a)mutual wills are inconsistent with the principle of testamentary freedom;
(b)people who receive legal advice in relation to their wills are presumed to know or to have been told that wills are revocable;
(c)mutual wills have always been uncommon;
(d)the Courts have recognised that married people routinely make wills by agreement but that it is a significant further step to bind oneself not to revoke one’s will; and
(e)domestic parties will frequently enter into “agreements” without any intention to be legally bound by those agreements, as recognised in case law references to “honorary agreements” and “mutual expectations or desires”.
[97] Mr Raymond referred to a number of recent cases including Hardy v Whitcombe29 and Cleary v Cockroft30 as more analogous to the present case than
29 Hardy v Whitcombe [2017] NZHC 2382.
30 Cleary v Cockroft, above n 5.
Henson (as suggested by Mr Tyrrell). Mr Raymond in particular drew a comparison between the testator’s statement in Cleary v Cockroft that the couple’s wills were “sorted”,31 with the discussion relayed by Mervyn in his evidence.
Discussion
[98] I am satisfied that the plaintiffs’ claim must fail by a substantial margin. The alleged mutual understanding of the two testators was not sufficiently certain in its terms to enable the Court to enforce it. While the Court is to apply the ordinary civil standard to the evidence adduced, the care which needs to be exercised in relation to the evidence of Mervyn, in particular, leaves the Court in a state of such uncertainty as to the couple’s intentions that the plaintiffs have not established the 2012 wills constituted mutual wills.
[99] While the critical discussion on which the plaintiffs can seek to rely for the purpose of establishing these were mutual wills is Mervyn’s lunch-time conversation with Graeme and Denise in 2013, it is appropriate to first examine the earlier and other more general discussions which Graeme and Denise had with various witnesses.
[100] I have referred (at [68] above) to the evidence of the plaintiffs’ witnesses, including Mrs Hill, as to Graeme and Denise’s discussions about splitting of estates between the families (or similar). I do not consider that the absence of similar discussions with Denise’s side of the family undermines the evidence as to there having been such discussions with Graeme’s side of the family. On the evidence Graeme was clearly the more prepared of the two to discuss such matters. Denise was decidedly the more reticent. It is unsurprising that with Denise not raising such matters with her family, Graeme would not unilaterally take it upon himself to go into that area of discussion with them.
[101] I find to be clearly established the fact that Graeme and Denise on repeated occasions engaged in discussions with members of Graeme’s family and Mrs Hill and indicated that their estates would be split or shared between the families once the
31 At [23].
survivor died. Such conversations occurred both before and after the 2012 wills were executed.
[102] I have taken into account the fact that during at least some of Graeme’s and Denise’s discussions the indication they were thereby giving to the family and to Mrs Hill was either not fully or in some cases at all consistent with the wills being in place. The most likely explanation for that is Graeme and Denise each had a genuine intention to bring that sharing about even if wills to that effect had not been finalised.
[103] In a sense, these earlier discussions are simply background against which the critical discussion of 2013, as relayed by Mervyn, falls to be considered.
[104] There can be no doubt Graeme and Denise, as they came to make their 2012 wills, fully understood that wills are revocable. On repeated occasions they had revoked previous wills.
[105] It is significant Graeme and Denise, when they came to structure and execute their wills in December 2012, they did not promptly at that point communicate to Mervyn or others, if they had agreed to make mutual wills, the dramatically different decision reached, namely to make their wills irrevocable. Given Mervyn in particular was a person with whom they felt they could discuss important life decisions, the failure to do so close to that immediate point is surprising. To wait almost a year is even more surprising, if they had made mutual wills.
[106] There is also something of a mismatch between the communication of a decision about the irrevocability of wills with an invitation to come to share lunch, with no prior indication that an important matter relating to wills was to be discussed. The situation is entirely consistent with the focus being on having a final catch-up with Mervyn before he returned to Australia, with an incidental discussion about wills, rather than communicating the important fact (beyond the fact that further wills had been executed) that the couple had decided to now lock those in as irrevocable instruments.
[107] This situation is far removed from the significant summons received by the affected family members in Henson, where all affected family members were summoned, including those who would need to travel from overseas.32 The words claimed to have been used here differ from those used in Henson. The words used by Mr Henson that the will arrangements were “set in stone”, with the further explanation that they would not be changed, were clearly words connoting irrevocability.33
[108] While there is material in Mervyn’s relaying of the lunch-time discussion, particularly the use of words indicating the couple now had final wills, which to Mervyn may have been suggestive of a commitment not to change those wills, I cannot be satisfied that Graeme and Denise intended unambiguously to convey such a commitment. That is for a number of reasons:
(a)Mervyn in his evidence (either in chief and or in cross-examination) in the course of apparently quoting Graeme and Denise gave varying accounts of precisely what was said. His reference to “the tone” of the conversation indicates that the precise wording used by Graeme and Denise is beyond Mervyn’s recall;
(b)the reference to the 2012 will being “the final will succeeding all other previous wills they had drawn up” in fact reflects the nature of any person’s last will, namely that it supersedes those that have preceded it;
(c)Mervyn’s recollection of a reference to “their final will”, a conversation he is recalling some seven or eight years after the event, is likely to be less than perfect. Very similar words, such as “we have finalised our wills and made them much simpler”, broadly consistent with the rest of Mervyn’s recollection, could have left such an impression of “finality” in Mervyn’s mind. That is particularly so when the reference to “final will” was tied, as Mervyn stated, to a
32 Henson v Gandar, above n 27.
33 At [26].
reference to a will that “they had drafted up previously”. Drafted wills need to be finalised or made final to have any effect; and
(d)the likelihood that Graeme and Denise had not made a mutual commitment as to irrevocability, and did not intend to convey such to Mervyn, is also consistent with the fact that they did not through anything they said in relation to their will instructions, alert Mr Trollope to the possibility that they intended to create mutual wills.
[109] In summary, I am satisfied, that in keeping with the indications they had given to Graeme’s family over the years, both Graeme and Denise in executing the corresponding wills which they executed over the years, including in 2012, looked to each other, if surviving, to honour that approach. In terms of the expressions used in the case law, there was between Graeme and Denise as they executed each set of corresponding wills an honorary agreement to see the ultimate distribution of their estates completed in accordance with the structure of those wills. Such, however, does not constitute an agreement to have mutual wills. On the basis of the evidence in this proceeding, no such commitment has been established.
[110]There will accordingly be judgment for Timothy.
Costs
[111] Counsel at the conclusion of submissions addressed me on costs. It was accepted that costs would follow the event on a 2B basis.34
Orders
[112]I order:
(a)there is judgment for the defendant;
(b)the plaintiffs are to pay to the defendant costs on a 2B basis, together
34 High Court Rules 2016, category 2 under r 14.3(1) and band B under r 14.5(2).
with his reasonable disbursements, to be fixed by the Registrar.
Osborne J
Solicitors:
Maciaszek Brown Law, Christchurch Counsel: G P Tyrrell, Barrister, Christchurch D’Arcy Thomson Law, Christchurch Counsel: R W Raymond QC, Christchurch
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