Cleary v Cockroft - [2020] NZHC 1453

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2019-412-000022

[2020] NZHC 1453

IN THE MATTER of the Estate of FRANCIS JOHN KERSHAW

BETWEEN

ROCHELLE ANNE CLEARY, JASON DESMOND BARRETT and ANDREW KIRK RAYMOND BARRETT

Plaintiffs

AND

IVAN JOHN COCKROFT as Executor and Trustee of the Estate of the Deceased Defendant

Hearing 18 June 2020

Appearances:

B R D Burke and J I Grant for the Plaintiffs M J Foley for the Defendant

(Attendance of G Wilkin for Interested Party Beverley Quayle excused)

Judgment:

25 June 2020

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 25 June 2020 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

CLEARY v COCKROFT [2020] NZHC 1453 [25 June 2020]

Introduction

[1]The issue in this case is whether a couple’s wills were executed as mutual wills.

[2] Francis (Frank) and Christine (Chrissy) Kershaw began a de facto relationship in 1998, thereafter purchasing a property together, and were married in June 2005. They had both been married before and each had three (by then adult) children to their previous partners.

[3]Chrissy died on 26 September 2011. Frank died on 9 August 2017.

[4]This proceeding concerns the validity of Frank’s will dated 4 April 2012.

[5] The defendant is Ivan Cockroft, the solicitor appointed as executor and trustee under Frank’s final will.

[6] The plaintiffs, Rochelle Cleary, Jason Barrett and Andrew Barrett (Chrissy’s children), seek a declaration that Mr Cockroft holds a one-sixth share of the residue of Frank’s estate on trust for each of them. They assert that the provisions of Frank’s will constitute a breach of a mutual wills arrangement entered into between Chrissy and Frank. The provisions of the wills executed in October 2009 mirrored one another. By the 2009 wills, Chrissy and Frank each left their estates to the other if he or she survived for 14 days, failing which the estate was left to be divided equally among all the surviving children and step-children of the two of them.

Facts

[7] Chrissy and Frank entered a relationship in the nature of marriage in April 1998. At the time Chrissy was aged 41 and Frank 46.

[8] By reason of the age of their children, they lived as a couple, none of the children becoming melded as part of their household. Frank’s younger children remained with their mother. There would be no children of Frank and Chrissy’s relationship.

[9] Chrissy had been employed by the local hospital in supply and maintenance. It appears that Chrissy was part of a superannuation scheme. The couple moved into a house in Ball Street, Invercargill which Chrissy owned (and which was subsequently sold in 2003 for $101,000). Chrissy’s significant assets on entering the relationship appear to have been her house property and her superannuation entitlement.

[10] Frank had been and continued to be in the Fire Service, as the station manager at Invercargill. Frank did not own a house,…

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 Cleary v Cockroft

Details

AGLC: Cleary v Cockroft [2020] NZHC 1453
Case: [2020] NZHC 1453
Decision Date: 25 June 2020

CaseChat Overview and Summary

The plaintiffs, Rochelle Cleary, Jason Barrett and Andrew Barrett, the children of Chrissy Kershaw, challenged the validity of Frank Kershaw's will, dated 4 April 2012, asserting that it breached a mutual wills arrangement entered into between Frank and Chrissy. The plaintiffs sought a declaration that the defendant, Ivan Cockroft, holds a one-sixth share of the residue of Frank’s estate on trust for each of them. The legal issues were whether the plaintiffs had proven the existence of mutual wills between Frank and Chrissy and whether there was a mutual understanding or agreement that neither would revoke their wills. The court found that there was no evidence of a commitment to non-revocation and that the discussions between Frank and Chrissy, and with others, were consistent with an honorary agreement or mutual expectation rather than a binding commitment. The plaintiffs' claim was dismissed, and the defendant was awarded costs.

Orders