Estate of Brown - [2022] NZHC 1183

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-000210

[2022] NZHC 1183

UNDER the Wills Act 2007

IN THE MATTER

of an application for Correction of a Will

IN THE MATTER

of the Estate of MARGARET ZOE BROWN

IN THE MATTER

of an application by DARRYL NOEL MAFFEY for an order correcting a Will

Hearing: On the papers

Judgment:

26 May 2022

JUDGMENT OF NATION J

Introduction

[1] Margaret Zoe Brown (Margaret) owned a home in equal shares with her husband Laurie James Brown (Laurie). Margaret had four children who are now all adults. Laurie is not their father. In her will, she left a life interest in the home to Laurie. With the way the will was drafted, he would have been entitled to the residue in her estate and this would have included her half interest in the home. Her son, who is the executor of her estate, has filed an originating application, to correct the will so that, subject to Laurie’s life interest, Margaret’s half share is held for her children in equal shares.

[2] Margaret’s four children and Laurie have completed a deed of family arrangement agreeing that the will should be corrected to reflect Margaret’s intentions.

Estate of Margaret Zoe Brown [2022] NZHC 1183 [26 May 2022]

Background

[3] Margaret was married to Laurie for 30 years. Margaret made a will dated 27 May 2015. She named as executors her son Darryl Noel Maffey and a solicitor who, at the time, was employed with the law firm Taylor Shaw. At the time she made the will, Margaret had four adult children, including Darryl Maffey. She had five grandchildren, two of whom are minors.

[4] In her will, Margaret left proceeds of any bank accounts held in her sole name to be divided equally between her children. She gave all articles of household use and personal items inherited by her from her family to her trustees to be divided equally between her children. She gave her one half share in any property owned by her and Laurie at her death to her trustees in trust to permit Laurie to have the use of it during his lifetime.

[5] The will set out the terms on which Laurie was to have a life interest. These were consistent with terms normally in a will for such a life interest. For instance, he was required to pay outgoings, such as rates and insurance, for that half share of the property. Margaret’s estate was to meet, from capital, the cost of ensuring the property was in good condition immediately after Margaret’s death. Thereafter, Laurie would be responsible for keeping the property in good condition, to the satisfaction of her trustees. There is a power for Laurie to ask Margaret’s trustees to sell her share of the property and for the estate’s half share of the proceeds to be used in the purchase of a substitute home for Laurie.

[6] There was…

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: [2022] NZHC 1183
Decision Date: 26 May 2022

CaseChat Overview and Summary

Margaret Zoe Brown, a resident of Christchurch, passed away leaving a will that required correction. The will named Darryl Noel Maffey, one of Margaret's four children, as an executor. The will left a life interest in a jointly owned home to Laurie James Brown, who was married to Margaret but was not the father of her children. Upon Laurie's death, Margaret's half share in the home was intended to be held for her children in equal shares. However, the will did not explicitly state this and instead left her half share in the home to Laurie absolutely. Darryl, as executor, applied to the High Court to correct the will so that Margaret’s intentions are fulfilled. All of Margaret's children and Laurie agreed to the proposed correction through a deed of family arrangement.
The central legal issue was whether the Court should correct Margaret's will to ensure her intentions were fulfilled. Specifically, the Court needed to determine whether the will contained a clerical error or failed to give effect to Margaret's instructions, as required by section 31 of the Wills Act 2007. The Court also had to consider whether it was necessary to serve the application on all potential beneficiaries under the existing will.
The Court found that the will did not give effect to Margaret's instructions and intentions. The solicitor who drafted the will confirmed that Margaret intended for her children to benefit from her assets upon Laurie's death. The Court was satisfied that the proposed correction would accurately reflect Margaret's intentions and that no grandchild would successfully challenge the estate due to its modest size and the clear intentions expressed in the deed of family arrangement. The Court concluded that serving the application on all potential beneficiaries was unnecessary given the agreement among all relevant parties and the modest size of the estate.

The Court ordered that clause 2(e) of Margaret's will be amended to ensure her half share in the home is held for her four children in equal shares upon Laurie's death. This amendment ensures Margaret's intentions are honoured and her children benefit as she intended. The correction aligns with the family's agreement and the clear evidence of Margaret's wishes.

Orders