Henderson v Henderson

[2013] NZHC 519

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2012-409-002370 [2013] NZHC 519

IN THE MATTER OF     the estate of ANDREW BRUCE HENDERSON (Deceased)

BETWEEN  HELEN JEAN HENDERSON (NAMED IN  THE WILL AS HELEN JEAN BAKER), MELISSA JANE HENDERSON AND ANNA LOUISE FOX (EXECUTORS)

Plaintiffs

AND  HELEN JEAN HENDERSON (NAMED

IN THE WILL AS HELEN JEAN BAKER) AND ANNA LOUISE FOX AS SURVIVING TRUSTEES OF THE BHB FAMILY TRUST BEING A BENEFICIARY

First Defendants

AND  HELEN JEAN HENDERSON (NAMED

IN THE WILL AS HELEN JEAN BAKER) ADMINISTRATOR OF

CHRISTCHURCH AS BENEFICIARY Second Defendant

ANDJAMES HENDERSON AND IERA HENDERSON AS BENEFICIARIES Third Defendant

ANDJANET LESLEY MAKIV AS BENEFICIARY

Fourth Defendant

ANDMELISSA JANE HENDERSON AS BENEFICIARY

Fifth Defendant

Hearing:         18 March 2013

Appearances: J M Stringer for Plaintiffs

Judgment:      19 March 2013

HENDERSON & Ors V HENDERSON & Ors HC CHCH CIV-2012-409-002370 [19 March 2013]

JUDGMENT OF FOGARTY J

[1]      This  is  an  application  that  the  last  Will  of  Andrew  Bruce  Henderson (deceased), dated 24 August 2010, be proved in solemn form to be a valid Will, and probate of it granted to the plaintiffs, being the executors named in the Will.   He married Helen Baker, one of the plaintiffs, on 2 April 2011.   The reason for the proceedings is the application of s 18 of the Wills Act, which provides:

18     Effect on will of will-maker marrying or entering civil union (1) A will is revoked if the will-maker marries or enters a civil union. (2)        Subsection (1) is—

(a)     overridden by section 10; and

(b)     overridden by subsection (3); and

(c)     qualified by subsection (4). (3)        Subsection (1) does not apply if—

(a)     either—

(i)      the will expressly says that it is made in contemplation of a particular marriage or civil union; or

(ii)   the will does not expressly say that it is made in contemplation of a particular marriage or civil union but the  circumstances  existing  when  it  was  made  show clearly that it was made in contemplation of a particular marriage or civil union; and

(b)     the marriage or civil union that occurs is the contemplated one. (4)     The exercise by will of a power of appointment is not revoked by the

will-maker marrying or entering a civil union if the property appointed would not go to the will-maker's personal representative if the will- maker did not exercise the power.

[2]      The question in this case is whether or not subs (3)(a)(ii) applies so that subs (1) does not apply.

[3]      I note that there is no opposition to this application by the members of the family,  who have been  served.   An order was  made dismissing service for the

deceased’s son, Scott Henderson, who was in fact contacted by Interpol but declined to participate in these proceedings.  He is, however, a discretionary beneficiary under the BHP Family Trust, to be discussed.

[4]      By the terms of this Will, Mr Henderson appointed Helen Baker, then his partner,  his  daughter,  Melissa  Jane  Henderson,  and  his  solicitor, Anna  Fox,  as trustees and executors of the Will.   He directed that after his death the power of appointment of new trustees of the BHB Family Trust shall vest in Helen Baker if she survives him, or, if she did not survive him, shall vest in Melissa.   He made arrangements for the maintenance and care of his parents.  Out of the funds set aside for that purpose, on the death of his parents the trustees were to divide the balance between his sister, Janet Makiv, and his daughter, Melissa.  He gifted his silver and antique china to Melissa.  He gifted his remaining personal chattels to Helen Baker, provided that if she pre-deceased him, then to his children, Melissa and Scott, in equal  shares.    He gave  the rest  of his  estate,  the residue  after expenses, to  be transferred to the BHB Family Trust.

[5]      The BHB Family Trust is a discretionary trust.  The primary beneficiaries are the deceased and Helen Baker, the children of the deceased, Melissa and Scott, and the children of Helen, Renee Baker, Regan Baker and Callum Baker.   There is a power to add further beneficiaries.

[6]      At the same time as settling this Trust, the deceased and Helen, as the settlors, signed a memorandum of wishes.  The memorandum of wishes makes it clear that they wanted family decisions to prevail over business decisions. And that the family were themselves and their respective children.

[7]      About one month later, after making the Will and settling the Trust, on 22

September 2010, during an overseas trip, the deceased proposed to Helen.  He told her, at the time of the proposal, that he had always intended to propose to her on that overseas holiday.  I draw the intention that the circumstances had a likely romantic character on the part of the deceased.  I am satisfied in these circumstances that when he made his Will in August, it was in contemplation of marrying Helen.

[8]      For these reasons, I am satisfied that subs (3)(a)(ii) applies, so that subs (1) does not apply.  Accordingly, the Will was not revoked when the deceased married Helen.

[9]      I am satisfied that the Will should be admitted to probate.  Accordingly the probate of it is granted to the plaintiffs, being the executors named in the Will.

Solicitors:

Saunders Robinson Brown, Christchurch – [email protected]