Crawford v Phillips - [2018] NZCA 208

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA399/2017
[2018] NZCA 208

BETWEEN	JOHN ERNEST CRAWFORD AND PHILIP SAMPSON WELLS AS EXECUTORS OF THE ESTATE OF KRUZO PHILLIPS Appellants
AND	DORIS PHILLIPS AS EXECUTOR OF THE ESTATE OF JOHN YUKICH Respondent

Hearing:	9 April 2018
Court:	Asher, Wylie and Thomas JJ
Counsel:	A J Steele and K R Narayanan for Appellants D J Blaikie and T W Luders for Respondent
Judgment:	22 June 2018 at 9 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
B Costs are reserved. If the parties are unable to reach agreement on costs they are to file submissions within 30 working days of the date of this judgment.

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REASONS OF THE COURT

(Given by Asher J)

Introduction

This is an appeal concerning the last will of Kruzo Phillips. Mr Phillips died on 22 August 2009 and his last will was dated 24 April 1995 (the Will). In the decision declining defendant summary judgment appealed from, Associate Judge Bell held that certain provisions in the Will were invalid.[1] The trustees and executors of Mr Phillips’ estate, John Crawford and Philip Wells, who had sought defendants’ summary judgment, challenge that finding in this appeal. The respondent, Doris Phillips, was the plaintiff in the High Court. She is the de facto partner of Mr Phillips’ only brother, John Yukich (now deceased), to whose estate the relevant part of Mr Phillips’ estate will pass in the event of an intestacy.

Background

[1]Phillips v Crawford [2017] NZHC 1478, [2017] NZAR 1233 at [60].

Mr Phillips had owned a picturesque but run-down 184-hectare farm at Opononi called “Onoke” since 1989 (the Farm). It is situated on a peninsula on the Hokianga Harbour. It does not seem as if Mr Phillips ever farmed it personally. After he purchased the Farm, Mr Phillips met the appellant John Crawford who took on a management role. This included hiring and managing those who worked the Farm, and organising its grazing, maintenance and repair. Mr Phillips and Mr Crawford became friends.
Mr Phillips’ long term lawyer was the appellant Philip Wells of Auckland. On 24 April 1995 Mr Phillips visited Mr Wells at his office to discuss and execute the Will. Mr Wells took instructions and drafted the Will while Mr Phillips waited. Mr Phillips reported to Mr Wells that he had fallen out with his brother, Mr Yukich. Mr Wells deposed that Mr Phillips wished to appoint him and Mr Crawford as co‑executors of his will. Mr Wells prepared the Will and it was signed that day.
In accordance with Mr Phillips’ instructions, the Will appointed Messrs Crawford and Wells as executors and trustees. The Will is in short form and its terms are central to the appeal. We set out the three critical clauses:

3. I GIVE DEVISE AND BEQUEATH all the real property and chattels thereon comprising my farm situated in Opononi…

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 Crawford v Phillips

Details

AGLC: Crawford v Phillips [2018] NZCA 208
Case: [2018] NZCA 208
Decision Date: 22 June 2018 at 9 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellants, John Crawford and Philip Wells, executors and trustees of the estate of Kruzo Phillips, appeal against the decision of Associate Judge Bell declining their application for defendants' summary judgment. The respondent, Doris Phillips, the executor of the estate of John Yukich, the deceased brother of Kruzo Phillips, filed proceedings in 2016 seeking declaratory orders that certain clauses of Phillips' will were invalid and resulted in an intestacy. The appeal concerns the validity of clauses 4 and 5 of the will, which direct the trustees to dispose of Kruzo Phillips' property in any manner they see fit. The court held that the clauses created a trust, which failed due to uncertainty of objects. The appeal was dismissed, and costs are reserved pending any agreement between the parties. If no agreement is reached, the parties must file submissions within 30 working days of the judgment.

Orders