Hardy v Whitcombe - [2017] NZHC 2382

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2017-412-000047 [2017] NZHC 2382

IN THE MATTER
of the estate of RICHARD ANTHONY

REID

BETWEEN

RICHARD MATHESON HARDY AND OTHERS

Plaintiffs

AND

TODD WHITCOMBE Defendant

Hearing: 11 October 2017

Appearances:

R Butler for Plaintiffs/Respondents
C S Withnall QC for Defendant/Applicant

Judgment:

30 October 2017

JUDGMENT OF ASSOCIATE JUDGE OSBORNE
[on defendantʼs summary judgment application]

Introduction

[1] In 1960 Grace and Richard Reid (Richard was more commonly known as

“Dick”) were married, the third marriage for her and the first for him.

[2] In 1968 they executed wills whose provisions mirrored one another, leaving everything to the survivor with no gift over.

HARDY v WHITCOMBE [2017] NZHC 2382 [30 October 2017]

[3] In 1995 Grace died and Dick took under her 1968 will. He took also their principal (jointly owned) asset, their house, by survivorship.

[4] Thereafter Dick made a number of wills, initially making some provision for Grace’s grandchildren (through an earlier marriage) but later making no such provision. His last will was dated 14 July 2008.

[5] Dick died in June 2016 and his 2008 will has since been probated.

This proceeding

The original statement of claim

[6] Richard Hardy (“Richard”) was Grace’s only child. He has three children who are Grace’s only grandchildren. In this proceeding he sued Todd Whitcombe, the executor of Richard’s estate. He sued on a single cause of action under the equitable doctrine of mutual wills. The primary relief he sought was:

…a declaration that the will dated 14 July 2008 is invalid.

[7] By his statement of claim he set out the family background and the making of wills in 1968.

[8] He then pleaded:

(11) Before they executed the Wills dated 10 May 1968, both the Testator and Mrs Reid agreed that whomever of them died first would hold their property, including the relationship property, on trust for the plaintiff and the plaintiff’s children, Fiona, Tim and Philip.

(12) The wills made by the Testator and Mrs Reid on 10 May 1968 were mutual wills.

(13) In the event of their deaths, both the Testator and Mrs Reid agreed to dispose of their property including their relationship property, to each other in their mutual wills.

(14) Prior to executing their mutual wills, both the Testator and Mrs Reid promised not to evoke their respective wills in a manner that was inconsistent with their mutual wills.

(15) The Testator’s will of 14 July 2008 is inconsistent with the terms of
the Testator’s mutual will, dated 10 May 1968, and his execution

was a breach of the promise the Testator made to Mrs Reid in terms of paragraphs 13 and 14 above.

The second statement of claim

[9] After counsel for the executor filed his submissions for this hearing, an amended statement of claim was filed by Richard. It introduced a new cause of action and sought different relief.

[10] The first cause of action remained based…

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 Hardy v Whitcombe

Details

AGLC: Hardy v Whitcombe [2017] NZHC 2382
Case: [2017] NZHC 2382
Decision Date: 30 October 2017

CaseChat Overview and Summary

The case of Hardy v Whitcombe involved a claim by Richard Hardy and his three children, the grandchildren of Grace and Dick Reid, against Todd Whitcombe, the executor of Dick's estate. The plaintiffs sought a declaration that Dick's 2008 will was invalid and that Todd held half of Dick's estate on trust for the plaintiffs. The plaintiffs argued that Grace and Dick had made mutual wills in 1968, leaving their estates to each other with the intention that the survivor would hold the estate on trust for the plaintiffs. Alternatively, they argued that a secret trust existed, whereby Grace communicated to Dick her intention that he hold her estate on trust for the plaintiffs until his death, when he was to provide for them from her estate.

The court considered the requirements of both mutual wills and secret trusts. For mutual wills, the court noted that the doctrine required an underlying consultation and coordination between the testators, resulting in an agreement or arrangement as to how they would make their respective wills, and a contract or mutual understanding that neither testator would revoke the will provisions or deal with the property inconsistently. The court found that the plaintiffs had not provided sufficient evidence to establish that Grace and Dick had reached such a mutual understanding. Additionally, the court noted that the concept of mutual wills did not apply to outright bequests to the surviving spouse without a gift over.

For the secret trust claim, the court found that the plaintiffs had not established the required element of intention. The evidence suggested that Grace and Dick were assuming moral or family obligations rather than trust obligations which were intended to be binding in law.

The court granted summary judgment in favour of the defendant, Todd Whitcombe, and ordered that the plaintiffs pay the defendant's costs and disbursements.

Orders