Heissenbuttel v Taylor

[2021] NZHC 3080

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CIV-2020-406-4

[2020] NZHC 3080

IN THE MATTER OF

THE ESTATE OF JUDYNE FRANCES HEISSENBUTTEL

BETWEEN

MARK RICHARD HEISSENBUTTEL

Applicant

AND

LISA ANN TAYLOR

Respondent

Hearing:

On the papers

Counsel:

R M Stoop for Applicant

M Hardy-Jones for Respondent

Judgment:

20 November 2020

JUDGMENT OF CLARK J

Introduction

[1]    This proceeding concerns the will of the late Judyne Frances Heissenbuttel who died on 7 October 2019.

[2]    The  applicant  is  Judyne’s  son.  The  respondent  is  Judyne’s  daughter.   Mr Heissenbuttel and Ms Taylor are the named executors of the deceased’s last will, dated 13 September 2019.

[3]    Mr Heissenbuttel filed this proceeding in order to obtain probate and to seek a correction to the September 2019 will under s 31 of the Wills Act 2007. He contended that cl 4 of the will was included by mistake and the will should either be corrected or,

HEISSENBUTTEL v TAYLOR [2020] NZHC 3080 [20 November 2020]

if the mistake renders the entire will invalid, the deceased’s previous will dated 27 May 2019 should be admitted to probate.

[4]    The effect of cl 4 of the September 2019 will is to give Ms Taylor an option to purchase Mrs Heissenbuttel’s home for its value less up to 30 per cent.

The issues for determination

[5]    On the eve of the two-day hearing scheduled to commence 28 September 2020, the parties reached an agreement as to the appropriate manner in which the estate is to be distributed.

[6]    The full terms of their agreement are recorded in a Deed of Family Arrangement. The parties consider their agreed terms appropriately reflect their mother’s wishes to enable the respondent the opportunity to purchase the property.

[7]    Notwithstanding their agreement as to distribution the parties agree a grant of probate is  required  and  that  it  is  not  for  the  parties  to  determine  which  of  Mrs Heissenbuttel’s wills should be admitted to probate.

[8]Accordingly, this judgment determines:

(a)which of Mrs Heissenbuttel’s wills is to be admitted to probate: and

(b)if the September 2019 will is to be admitted to probate whether correction of that will is appropriate.

The contentious clause 4

[9]Clause 4 states:

4.Option to Purchase Home

4.1I DIRECT my trustees as soon as conveniently possible after my death to give my daughter LISA the option to purchase the property at 23 Hiley Street, Blenheim, or any property purchased in substitution, owned by me at my death at a reasonable price determined by my Trustees in their absolute discretion and on the following bases:

a)My Trustees shall notify LISA in writing of the price.

b)LISA shall be required to notify my Trustees in writing within the period of two years after the amount of the price has been communicated in writing to her by my Trustees whether or not LISA exercised this option.

c)If LISA fails, refuses, or neglects within that period to notify my Trustees in writing then LISA shall be deemed to have rejected the option.

d)This option shall be personal to LISA and shall not be exercisable by her Executors or Administrators or by any other person or person.

e)Any share of LISA in my Estate may in the discretion of my Trustees be applied wholly or partly as the case may be in the payment of the purchase money.

Analysis

[10]   Stephen Riley, a principal of the legal practice in Blenheim known as Lundons Law acted for Mr and Mrs Heissenbuttel for many years. Mr Riley filed an affidavit in this proceeding. The first point Mr Riley makes in his evidence is to “say with some certainty that the couple’s overall ethos in relation to their estate planning was to treat their two children equally”.

[11]   Mr Riley met with Mrs Heissenbuttel on 16 August 2019. Mr Riley’s evidence is that he was instructed to:

(a)alter Mrs Heissenbuttel’s then current will by appointing independent executors;

(b)remove the small bequest to the children of her deceased son; and

(c)include a first right of refusal in favour of Ms Taylor to purchase her property.

[12]   Mr Riley’s handwritten note of Mrs Heissenbuttel’s instructions was in evidence.

[13]   Following the August meeting Mrs Heissenbuttel instructed Mr Riley that issues between her children had been amicably resolved and they should remain as

executors. Mr Riley then had one of his legal staff prepare the new will by deleting the provision for the grandchildren and including what was intended to be a simple first right of refusal in favour of Ms Taylor. As Mr Riley points out the first right of refusal clause spans over two pages in the will.

[14]   When Mr Riley met with Mrs Heissenbuttel on 13 September 2019 to sign the will, in her presence Mr Riley checked to ensure the provision relating to the grandchildren had been deleted and that a first right of refusal had been inserted but he deposed to not noticing that the clause continued over the page and contained the provisions in issue. Mr Riley confirmed to Mrs Heissenbuttel at the time, that the amendments she had requested had been made and he left the room to ask a staff member to attend his office to witness the signing.

[15]Mr Riley’s evidence continued:

16.I believe I left the Will with Judyne when I went out but do not know whether she read it then. All I can say is that although there was time for her to read through it during the meeting I did not see her do so in my presence and there was very little time for her to have done so in my absence.

17.When I returned to the room Judyne initialled and signed the Will in the presence of the witnessing staff member and me as the other witness. At that point the meeting ended and she left in a good mood.

[16]   Following Mrs Heissenbuttel’s death, Mr Riley’s business partner dealt with the estate. Mr Riley describes himself as “surprised and taken aback” when he learned from his business partner some time later, that the first right of refusal contained a provision allowing a discount in the sale price to  Ms Taylor  of up to 30 per cent.  Mr Riley said he was unaware the provision was in the will and had to check it himself to verify the accuracy of what he had been told.

[17]   Mr Riley struggled to understand how the clause was included and looked further into the matter including into the word processing system and the solicitor who had actually typed the amendments to the will.

[18]   Believing a mistake had been made Mr Riley then conferred with his business partner and sought independent advice which confirmed Mr Riley’s view that full

disclosure needed to be made to the parties. Mr Riley was aware of the potential for disappointment and contention between the affected parties in making full disclosure but not to do so was not an option for him.

Decision

[19]   On the basis of Mr Riley’s evidence it is beyond doubt that cl 4 does not reflect Mrs Heissenbuttel’s intentions in relation to the family home nor her instructions to Mr Riley.

[20]   I am satisfied that s 31 of the Wills Act is engaged. Section 31 empowers the High Court to make an order correcting the will to carry out the will-maker’s intentions if satisfied that a will does not give effect to those intentions.

[21]   I am satisfied on the basis of Mr Riley’s affidavit evidence, and the note     Mr Riley made of Mrs Heissenbuttel’s instructions that cl 4 does not reflect her intention to simply give her daughter a first option to purchase but to otherwise maintain equality between her children.

[22]   I am further satisfied on the basis of affidavit evidence filed for the purpose of the scheduled hearing that Mrs Heissenbuttel was of sound mind when she made her will on 13 September 2019.

[23]Accordingly, the following orders are made:

(a)With cl 4 of the will removed and substituted with the following cl 4,1 the will made by Judyne Frances Heissenbuttel on 13 September 2019 is declared to be a valid will.

Clause 4

I direct my trustees as soon as conveniently possible after my death to give my daughter LISA the option to purchase the property at 23 Hiley Street, Blenheim, or a property purchased in substitution, owned by me at my death at a reasonable price determined by my trustees, and on such conditions as they may in their absolute discretion

1      The parties have agreed on the wording of the substituted clause.

determine.

(b)As agreed between the parties, the costs of this proceeding are to lie where they fall.

Karen Clark J

Solicitors:

Thomas Dewar Sziranyi Letts, Lower Hutt for Applicant Hardy-Jones Clark, Blenheim for Respondent