Coleman v Chalklen - [2016] NZHC 3178

IN THE HIGH COURT OF NEW ZEALAND

NAPIER REGISTRY

CIV- 2015-441-91

[2016] NZHC 3178

UNDER the Declaratory Judgments Act 1908

IN THE MATTER OF

the estate of Dorothy Farrington

BETWEEN

ADRIAN JAMES COLEMAN

Applicant

AND

DAWN LOIS CHALKLEN & OTHERS

Respondents

Hearing: 16 May 2016

Counsel:

D J O’Connor and J C Heaphy for Applicant

M J Wenley and J F McDowell for Respondents

Judgment:

22 December 2016

JUDGMENT OF CLARK J

Introduction

[1] The applicant is the sole surviving executor and trustee of the will of the late Dorothy Farrington. The applicant seeks a declaration as to the construction of a clause in the will bequeathing the residuary estate. Alternatively, a declaration is sought that the description of the residuary beneficiaries is void for uncertainty.

Facts

[2] The will was executed on 21 December 1987. The testator died the following year on 12 June 1988. Probate was granted in common form on 7 November 1988.

[3] The testator had one child, Maurice Farrington. The will provided a life interest to Maurice who had a mental illness. The residue now in contention became

COLEMAN v CHALKLEN & OTHERS [2016] NZHC 3178 [22 December 2016]

available upon Maurice’s death on 27 May 2013, some 25 years after the will was made. A little more than $202,000 is held on behalf of the estate.

[4]The will contains only seven clauses. Clause 4(b) provides:

To pay the balance of my residuary estate to such of the children of my four nieces (all of whom currently reside in Perth) and Alan, son of my sister the said Mona Elma McKenzie, as shall survive me and shall attain or shall have attained the age of 20 years, as tenants in common in equal shares, according to their heads and not according to their families.

[5] The words which I have italicised contain a mistake. It is common ground that the testator had only three nieces not four. Jonathan Heaphy, a solicitor employed by Luscombe Legal, the solicitors for the applicant, swore an affidavit in which it is accepted that:

the description of the group of beneficiaries in clause 4(b) of the will is incorrect because the testator did not have four nieces. The testator had three nieces.

[6] Furthermore, of the testator’s three nieces, Mrs Dawn Chalklen is the only niece to reside in Perth along with her four children.

Issues

[7] The originating application seeks from the Court a declaration that the words “such of the children of my four nieces” in cl 4(b) should be deleted and replaced with the words “such of the four children of my niece”. The result would be that instead of the description which I have italicised above the residuary beneficiaries would be described as “such of the four children of my niece (all of whom currently reside in Perth)…” In the alternative the originating application seeks a declaration that “a different interpretation should be given”. The application is not opposed.

[8] Because the residuary beneficiaries…

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 Coleman v Chalklen

Details

AGLC: Coleman v Chalklen [2016] NZHC 3178
Case: [2016] NZHC 3178
Decision Date: 22 December 2016

CaseChat Overview and Summary

In Coleman v Chalklen, the High Court of New Zealand was asked to interpret a clause in the will of Dorothy Farrington. The applicant, Adrian James Coleman, the executor of the will, sought a declaration to rectify a clause in the will which described the residuary beneficiaries. The clause in question, clause 4(b), provided for the residuary estate to be paid to the children of the testator’s four nieces, all of whom currently reside in Perth. However, the testator had only three nieces, not four, and only one niece resided in Perth with her four children. The court had to decide whether it could identify the intention of the testator and give effect to that intention, or whether the clause should be declared void for uncertainty.

The court found that the clause was partly true and partly false, and that with the aid of admissible extrinsic evidence the persons intended by the testator to be the residuary beneficiaries could be identified. The court accepted the evidence of Dawn Chalklen, the only niece of the testator who resided in Perth with her four children, that the testator intended the beneficiaries to be her four children. The court rejected the proposition that the testator had intended the disposition to mean “the children of my three nieces” given the description “all of whom currently reside in Perth.” The court also rejected the suggestion that because the testator had not travelled she may have simply said “Perth” when she meant “Australia.” The court held that the inclusion of the false part – the reference to four nieces – did not vitiate the gift but was simply rejected.

The court granted the application and ordered that the words in clause 4(b) “such of the children of my four nieces” be deleted and replaced with the words “such of the four children of my niece.” The court directed that a copy of the judgment be sent to the Official Trustee in Bankruptcy, who had communicated his interest in the proceeding. The court also directed that the reasonable costs incurred by the applicant in bringing the application, and by Mrs Chalklen and the applicant being represented at the proceeding, should be paid out of the share of the residue available to the four children of Mrs Chalklen.

Orders