Clarke v Clements - [2021] NZHC 2716

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…

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 Clarke v Clements

Details

AGLC: Clarke v Clements [2021] NZHC 2716
Case: [2021] NZHC 2716
Decision Date: 11 October 2021

CaseChat Overview and Summary

The case of Clarke v Clements involved a dispute regarding the validity of a will and the existence of mutual wills between Graeme Ellis and his late wife, Denise. The plaintiffs, Velma Clarke and Mervyn Ellis, were Graeme's sister and brother respectively, while the defendant, Timothy Clements, was Denise's nephew and the executor of her estate. The plaintiffs argued that Graeme and Denise had executed mutual wills, which would entitle them to a portion of Denise's estate. The court had to determine if the wills executed by Graeme and Denise in December 2012 constituted mutual wills under the Wills Act 2007.

The court found that while Graeme and Denise had engaged in discussions about the division of their estates between their respective families, the evidence was not sufficient to establish that they had made a mutual understanding or contract that neither would revoke their wills or deal with the property inconsistently. The court emphasised the need for clear and certain terms in establishing mutual wills, and noted that the discussions between Graeme, Denise and their family members did not meet this standard. The court also highlighted the courts' reluctance to find mutual wills due to the inconsistency with the principle of testamentary freedom. Therefore, the court ruled in favour of the defendant, Timothy Clements, and ordered the plaintiffs to pay the defendant's costs on a 2B basis.

Orders