Estate of Barrow - [2023] NZHC 1146

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2023-485-000196

[2023] NZHC 1146

IN THE MATTER of the estate of the late MARGARET NOLA BARROW

UNDER

Section 32 of the Wills Act 2007

BETWEEN

PAUL MICHAEL SUMMERS and GEOFFREY COPELAND BAKER as

trustees of the estate of the late MARGARET NOLA BARROW

Applicants

Hearing: On the papers

Counsel:

K H Lawrence for Applicants

Judgment:

12 May 2023

JUDGMENT OF RADICH J

[1] Margaret Nola Barrow (the deceased) died on 6 August 2017. Probate of her 25 July 2021 will was granted on 27 November 2017 (the will).

[2] The will left the income from the deceased’s residuary estate to her brother and the remainder was left to eight charities in equal shares. The deceased’s brother has now died and the residuary estate is held on trust for the eight named charities. The applicants, who are now the trustees of the estate, bring this proceeding under s 32 of the Wills Act 2007 (the Act) because of an ambiguity or uncertainty in relation to the way in which one of the eight charities named to benefit from the residuary estate is named in the will.

RE ESTATE OF MARGARET NOLA BARROW [2023] NZHC 1146 [12 May 2023]

[3] Clause 4(b)(iv) of the will names one of the charities as “the Medical Research Council of New Zealand”. The Medical Research Council of New Zealand (MRC) existed until 1990. Under the Health Research Council Act 1990, it was dissolved and a new Crown entity, Health Research Council of New Zealand (HRC) was created in its place.

[4] The applicants’ originating application seeks an order that cl 4(b)(iv) of the will be interpreted as reading “the Health Research Council of New Zealand” (originating application). In the alternative, an order is sought that the applicants proceed to prepare a scheme under Part 3 of the Charitable Trusts Act to give effect to the deceased’s charitable intention and direct, through that scheme, the funds be paid to HRC.

[5] In a separate interlocutory application without notice, directions are sought which would grant leave for the application to be brought by originating application, for the application to be conducted through the Wellington Registry and for service of the application to be dispensed with (the interlocutory application).

Interlocutory application for directions

Originating application procedure

[6] Under r 19.5 the Court may, in the interests of justice, permit any proceeding not mentioned in rr 19.2 to 19.4 (which is the case here) to be commenced by originating application. Curiously, r 19.2 identifies, specifically, applications under ss 14 or 31 of the Wills Act as proceedings that may be made by originating application but not proceedings under s 32. Section 14 of the Wills Act enables the Court to declare a document to be a valid will and s 31 enables the Court to make a correction to a will if satisfied that it does not carry out the will-maker’s intentions.…

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.

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Details

Case: [2023] NZHC 1146
Decision Date: 12 May 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the trustees of the estate of the late Margaret Nola Barrow sought an interpretation of an ambiguous reference in her will. The will left the income from her residuary estate to her brother and the remainder to eight charities in equal shares. The trustees, now holding the estate on trust for the charities, brought the proceeding under s 32 of the Wills Act 2007 due to an ambiguity in the naming of one of the charities. The will named "the Medical Research Council of New Zealand," which ceased to exist in 1990, with a new Crown entity, the Health Research Council of New Zealand, taking its place. The trustees sought an order to interpret the reference to mean the Health Research Council of New Zealand, or, alternatively, a scheme under the Charitable Trusts Act 1957 to give effect to the deceased’s charitable intention.

The court had to decide whether the originating application procedure was appropriate and if the proceeding could be conducted through the Wellington Registry without notice. The court found that the originating application procedure was suitable for this case, as it aimed for a just, speedy, and inexpensive determination of the issues. The only potentially affected party had consented to the application and the proceeding, making the Wellington Registry the most convenient registry. The court granted leave for the proceeding to be conducted without notice, as the interests of justice allowed it.

The court considered the relevant provisions of the Wills Act 2007 and found that the requirements of s 32 were satisfied. The deceased intended the residue of her estate to benefit charitable organisations involved in health-related services. The court concluded that the reference to the Medical Research Council of New Zealand should be interpreted as referring to the Health Research Council of New Zealand.

The court made the following orders: leave was granted to commence the proceeding by originating application, the application would be conducted through the Wellington Registry, service of the application would be dispensed with, clause 4(b)(iv) of the will of the late Margaret Nola Barrow would be interpreted as reading "the Health Research Council of New Zealand," and the costs of this application would be paid from the deceased’s estate on a solicitor-client basis.

Orders