Comins v Public Trust - [2021] NZHC 1172

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV 2020-485-405

[2021] NZHC 1172

IN THE MATTER OF Part 18 of the High Court Rules 2016 and the Trustee Act 1956 and the Declaratory Judgments Act 1908

BETWEEN

BRENDA JACQUELENE COMINS

Plaintiff

AND

THE PUBLIC TRUST

Defendant

Hearing: 22 March 2021

Counsel:

F E Geiringer for Plaintiff

M Freeman and G M Cairns for Defendant

Judgment:

25 May 2021

JUDGMENT OF MALLON J

Introduction

[1] Ian and Jacquelene Cameron, husband and wife, died ten days apart in May 2019. Their wills each contained an identical clause providing that, if the other had predeceased them, the trustee was to set-off a loan of $50,000 they had made to their daughter Brenda against her share of the estate. Because Ian died after Jacquelene, it was this clause in his will that applied.

[2] The daughter Brenda (the plaintiff) says that no set-off should be made under this clause because there was no such loan. She seeks a declaration that the clause is

COMINS v THE PUBLIC TRUST [2021] NZHC 1172 [25 May 2021]

ineffective and directing that Ian’s estate be distributed in accordance with the remaining provisions of the will.1

[3] The Public Trust (the defendant) is the executor and trustee under Ian’s will. The Public Trust considers that, on a proper assessment, the clause must be upheld on its terms and that it is therefore required to deduct $50,000 from Brenda’s share of the estate.

[4] Brenda’s sister, Sheryl, the only other beneficiary under the will, takes no position in the proceeding.2

The will

[5] Ian Cameron died on 27 May 2019. Probate was granted to Ian’s will dated 9 June 2016 with the Public Trust, as the executor named in the will, appointed as the administrator of his estate.

[6] The relevant part of the will, dealing with the residuary of the estate after payment of funeral expenses, debts, taxes and administration expenses, provided:

5. Joint Interest Free Loan to Brenda

5.1If my wife JACQUELENE dies before me, I direct my Trustee to set- off the amount owing in respect of our interest free loan of fifty thousand dollars ($50,000) to my daughter BRENDA JACQUELENE CAMERON against her share in my residuary estate. If BRENDA dies before me, the amount owed is to be set-off against the share of her children in my residuary estate.

5.2If the amount directed to be set-off exceeds the share in my residuary estate then that excess shall remain recoverable from BRENDA (or BRENDA’s estate) by my Trustee.

6. Gift of Residue

I GIVE my residuary estate to my wife JACQUELENE MARGARET CAMERON if she survives me by 30 days. If this gift fails THEN the following provisions for distribution shall apply instead.

7. Further Gift of Residue

1 Declaratory Judgments Act 1908, s 3; Trustee Act 1956, s 68; High Court Rules 2016, r 18.1(a).
2 She was served with the proceeding but did not…

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 Comins v Public Trust

Details

AGLC: Comins v Public Trust [2021] NZHC 1172
Case: [2021] NZHC 1172
Decision Date: 25 May 2021

CaseChat Overview and Summary

Brenda Jacquelene Comins sought a declaration that a clause in her father’s will, which provided for a set-off of a loan against her share of the estate, was ineffective. Ian Cameron had made an interest-free loan of $50,000 to Brenda in 2003 to enable her to purchase a house. He died in 2019 leaving a will, which provided that the loan was to be set-off against her share of the estate. Brenda contended that the $50,000 was a gift and not a loan and that there was therefore no sum to set-off against her share of the estate. The Public Trust, which was the executor and trustee under Ian’s will, considered that the clause must be upheld on its terms and that it was therefore required to deduct $50,000 from Brenda’s share of the estate. The court had to determine whether the $50,000 payment was a gift or a loan. The court found that the $50,000 payment was a gift in the sense that Ian and Jacquelene wanted to help out their adult daughter in the circumstance she was facing at the time and chose to make the $50,000 available to her without requiring or expecting that she repay the sum during their lifetime. The court further found that the relevant clause in Ian’s will was ambiguous or uncertain and therefore evidence of the surrounding circumstances and Ian’s intention was admissible to interpret the will. The court concluded that the clause was to be interpreted to give effect to Ian’s intention when he made his will. The “loan” referred to in the clause was the gift Ian and Jacquelene made to Brenda in 2003. As Brenda had not returned any of the gift to Ian or Jacquelene, the full amount was to be deducted from her share of the residuary estate. The court dismissed Brenda’s claim.

Orders