Commons v Commons - [2018] NZHC 2301

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-515

[2018] NZHC 2301

UNDER The Family Protection Act 1955 and the Court’s inherent jurisdiction

IN THE MATTER OF

the will of JOHN AXFORD KENNETH COMMONS

BETWEEN

ANDREW HAMILTON JOHN COMMONS

Plaintiff

AND

HAMISH JOHN COMMONS JONNE BRYDE WILLCOX and PATRICIA ANNE COMMONS

as trustees, executors and beneficiaries under thewillof JOHN AXFORD KENNETH

COMMONS

Defendants

CIV-2018-404-1057

UNDER

The Wills Act 2007

BETWEEN

HAMISH JOHN COMMONS and JONNE BRYDE WILLCOX

Applicants

AND

HAMISH JOHN COMMONS, JONNE BRYDE WILLCOX and PATRICIA ANNE COMMONS

Respondents

Hearing: 21 August 2018

Appearances:

Andrew Commons (plaintiff acting in his own right) J N Briscoe and R J Brown for the Defendants

K Muir and Ms Chung for Hamish Commons and Jonne Willcox as beneficiaries

Judgment:

4 September 2018

COMMONS v COMMONS [2018] NZHC 2301 [4 September 2018]

JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 4 September 2018 at 11:00am
pursuant to Rule 11.5 of the High Court Rules.

…………………………………
Deputy Registrar

Solicitors:
Tompkins Wake (J N Briscoe), Rotorua, for the Plaintiff Morgan Coakle (K Muir), Auckland, for the beneficiaries

Copy for:
Andrew Commons, Barrister, Auckland
Robyn von Keisenberg, Auckland, for Mrs Patricia commons (litigation guardian)

[1] In CIV 2018-404-515 the defendants, executors and trustees of the estate of the late Dr John Axford Kenneth Commons, apply to strike out parts of Andrew Commons’ statement of claim:

[a]that part of the first cause of action that alleges that assets held in trusts are to be counted as part of the estate of Dr Commons in establishing how the residue is to be distributed under his will; and

[b]the third cause of action, which alleges that by paying the entire net annual income of the estate to the widow, Patricia Commons, the defendants have not exercised their powers properly.

[2] The late Dr John Commons died on 20 April 2015. In June that year probate was granted for his will dated 11 May 2007. He married twice. There are two children of his first marriage, David Commons and Andrew Commons. That ended in separation in 1962 when Andrew was only a few months old. Dr Commons remarried in 1965. His widow, Patricia, has survived him. She is incapacitated under r 4.29 of the High Court Rules. I have appointed a litigation guardian for her as beneficiary. The children of his marriage to Patricia are Jonne Bryde Willcox and Hamish John Commons.

[3] In July 1987, Dr Commons as settlor established the John and Patricia Children’s Trust No.1. He and Patricia are the trustees. Jonne and Hamish are the only beneficiaries of the trust. At the end of the perpetuity period, 80 years, the trust assets are to be distributed to such beneficiaries as are living at that date. The deed gives the trustees powers to make earlier distributions and to bring the vesting date forward. They have a discretion as to the…

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 Commons v Commons

Details

AGLC: Commons v Commons [2018] NZHC 2301
Case: [2018] NZHC 2301
Decision Date: 4 September 2018

CaseChat Overview and Summary

In the case of Commons v Commons, the defendants, who were executors and trustees of the estate of the late Dr John Commons, applied to strike out certain parts of Andrew Commons' statement of claim. The applicants sought to strike out the first cause of action, which alleged that assets held in trusts should be counted as part of the estate when distributing the residue under the will, and the third cause of action, which claimed that the trustees had not exercised their powers properly by paying the entire net annual income of the estate to Patricia Commons.

The court found that the first cause of action was not reasonably arguable because the assets held in the trusts were not part of Dr Commons' estate, and therefore could not be taken into account when distributing assets under the will. The court also held that the third cause of action should not be struck out, as the trustees' exercise or non-exercise of their powers might be reviewable.

As a result, the court made the following orders:

(a) The parts of the first cause of action which relate to assets within the John and Patricia Commons Children’s Trust No.1 and the Whare Kamana Trust are struck out.

(b) The application to strike out the third cause of action is dismissed.

(c) There is no order as to costs.

(d) The Registrar is to arrange a case management conference for further directions.

Orders