Henson v Gandar
[2016] NZHC 841
•29 April 2016
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2015-485-244 [2016] NZHC 841
UNDER Part 18 of the High Court Rules IN THE MATTER
of the Estate of Christine Ellen Dornan
BETWEEN
JOHN MORGAN HENSON, GARY JOHN HENSON AND KYMM LOUISE HENSON
Plaintiffs
AND
ANNE VERE GANDAR Defendant
Hearing: 7-8 December 2015 Counsel:
C Matsis for Plaintiffs
J C D Corry for Defendant
P G Revell for Bassett Family TrustJudgment:
29 April 2016
JUDGMENT OF CLIFFORD J
Introduction
[1] This is a challenge to the will of Christine Ellen Dornan. The defendant, Anne Vere Gandar, was a very good friend of Ms Dornan and is the executor of that will.
[2] The plaintiffs – the Henson siblings, John, Gary and Kymm – are the children of Noel Henson. Noel Henson and Ms Dornan married, each for a second time, in May 1988.
[3] The plaintiffs say that wills their father and Ms Dornan made in November
1998 were mutual wills. Pursuant to those wills each of them left their entire estate
HENSON v GANDAR [2016] NZHC 841 [29 April 2016]
to the other. The surviving partner then left their estate in equal parts to the three Henson siblings and Ms Dornan’s daughter, Nicole Bassett. Ms Dornan subsequently decided to leave her property in equal parts, as between the plaintiffs together and her daughter. The plaintiffs say this was in breach of her agreement with Mr Henson represented by those mutual wills. Her estate should, therefore, be distributed as provided for in her November 1998 will.
Facts
[4] Ms Dornan had two children with her first husband: her daughter Nicole and a son Rhys. Rhys died tragically on 25 April 1981.
[5] Mr Henson and Ms Dornan met in 1984. At the time of their marriage in
May 1988 they were in their mid 40s. There are no children of that marriage.
[6] Mr Henson died in October 2008. His entire estate passed, by survivorship but in accordance with the terms of his 1998 will (for which probate was not obtained), to Ms Dornan. Ms Dornan died in June 2014. She had made a last will and testament in December 2013. Pursuant to that will, for which probate was granted in July 2014, her estate was to be divided in two equal parts: one to a family trust (the Bassett trust) of which her daughter Nicole and any grandchildren were the beneficiaries, the other to the three Henson children in equal shares. That is, the Bassett trust would receive one half of Ms Dornan’s estate; the Henson children would each receive one-sixth.
[7] The basis of the Henson siblings’ claim is what they said they were told by their father and Ms Dornan at a family meeting in March 2002. By then, Mr Henson was suffering from cancer. The Henson siblings all say that at that meeting Mr Henson and Ms Dornan advised them – for the first time – of the equal sharing provided under their 1998 wills as between each of them and Nicole Bassett individually. The couple also said that arrangement would not be changed. The Henson siblings say that Mr Henson repeated that assurance on a number of occasions thereafter.
[8] Nicole Bassett’s recollection of that meeting is different. She already knew of Mr Henson and Ms Dornan’s decision to leave their estates to each other and then in equal shares to their four children/step-children. She agrees the Henson siblings were told of that at the March 2002 meeting. But she does not recall any mention that those provisions would not thereafter be changed.
[9] The resolution of the Henson siblings’ claim requires me to determine just
one question of fact. If I am satisfied that, when they made their identical wills in
1998, Mr Henson and Ms Dornan agreed that thereafter neither of them would change those wills, most particularly after one of them had died, without the other having agreed, the law requires me to uphold that claim. If, however, I am not so satisfied, that claim must be dismissed. I am, it goes without saying, to make my decision on the available evidence and on the balance of probabilities. To provide the context for my consideration of that question of fact, it is helpful first to set out the law on what are known as mutual wills.
Mutual wills – the law
[10] The concept of mutual wills is now recognised in s 30 of the Wills Act 2007.1
Because Mr Henson and Ms Dornan made their wills in 1998, s 30 does not apply. Rather, this case falls to be decided under pre-existing equitable principles. Those principles are set out in a 2000 decision of the Court of Appeal, Lewis v Cotton.2
There, writing for the Court, Blanchard J noted that the origin of those principles could be found in circumstances where testators prepared a joint will, that is, a single
document signed by both of them.
1 Section 30 provides:
30 Mutual wills
(1) This section applies when—
(a) 2 persons make wills in which each—
(i) disposes of property on which the 2 persons have agreed; and
(ii) makes the disposition in a way on which the 2 persons have agreed; and
(b) each promises the other that he or she will not—
(i) revoke the will without making another will that keeps the agreement in the same or a better way; or
(ii) change the will in a way that fails to keep the agreement in the same or a better way; or
(iii) dispose, during his or her life, of some or all of an item of property that the will specifically disposes of; and
(c) the first of them to die (person A) keeps the promise; and
(d) the second of them to die (person B) does not keep the promise.
2 Lewis v Cotton [2001] 2 NZLR 21.
[11] Blanchard J went on to summarise the relevant legal principles.3 A will maker can always revoke his or her will even if non-revocation has been contractually promised, for a will is by its very nature and in its very essence a revocable instrument. However, the consequence of the promise may be that the executors and trustees of any replacement will, if it becomes operative upon the death of the testator, will be required to hold the affected assets upon a constructive trust in terms of the revoked will. Citing Dixon J in Birmingham v Renfrew,4
Blanchard J noted that it is the trust arising from the course of conduct which is
enforced, not the contract itself.5 The promise of a mutual will is not to revoke secretly during the other will maker’s lifetime (thus depriving the other person of the ability to adjust his or her own will) and, secondly, not to revoke at all after the other’s death, which event of course makes the other’s promise truly irrevocable. Rather than focusing on non-revocation per se, the obligation not to deal with property contrary to the agreement or understanding is what is important.6
[12] Addressing the nature of the promise not to revoke, the Court noted that a promise not to revoke (or not to deal with property in an inconsistent manner) may be express or may be implicit from what the parties have said and done, including the terms of the two wills. However, there must be more than mere consultation and coordination between the testators, and more than a mere agreement or arrangement between them that they will proceed to make their respective wills in a particular way. What is required to bring into play the doctrine of mutual wills is proof of an agreement intended to bind the two testators to a future course of inaction – that the
wills shall remain unaltered “come what may”, or at least in agreed circumstances.7
Importantly, the mere fact of making will mutually is not evidence of such an agreement having been reached.
[13] Further, Blanchard J stated that any such commitment is unlikely and
undesirable in modern times, which explains why true “mutual wills” are so very
3 At [42].
4 In Birmingham v Renfrew (1936) 57 CLR 666.
5 At [42].
6 At [43].
infrequently found. As a result, the Courts are very slow to find “mutual wills” just
because the parties have made corresponding wills.8
[14] In her 2011 decision, Webb v Executors and Trustees of the Estate of Lola Ethel Webb,9 Ellis J applied Lewis v Cotton and declined a claim of mutual wills. The facts of that case – a blended family arrangement – were similar to those here. Ellis J was not persuaded the wills were mutual. The wills had been prepared with the assistance of the Public Trustee, the executor. Central to Her Honour’s decision is the following analysis. She reasoned:10
Significantly, [the] evidence was that there was no discussion to this effect with the Public Trust, and that such a discussion would certainly have taken place had [the will makers] indicated a wish to set matters in stone. The absence of any such discussion is in my view a strong indication that irrevocability after the “first dier’s” death was not within their contemplation. Nor of course is there any indication of irrevocability on the wills themselves or in any separate document.
Analysis
Facts
[15] The issue I must decide is a factual one. I must decide it on the basis of the evidence before me. That evidence is contained in the affidavits of the three Henson siblings on the one hand, and on the other, that of Nicole Bassett, Ms Dornan’s executor (Anne Gandar), the friends of Ms Dornan’s later life (Heather and Jeffrey Matthews) and her solicitor (Nola McGowan). That affidavit evidence was supplemented in important ways by the cross-examination and re-examination before me of each of the Henson siblings, and Nicole Bassett, Heather Matthews and Anne Gandar. In considering whether there was a mutual commitment to irrevocability, I bear in mind the observations of Blanchard J in Lewis v Cotton that:
(a) wills are intrinsically revocable in nature;
(b)that the mere fact of making mutual wills is not evidence of such an agreement; and
8 At [48]–[49].
9 Webb v Executors and Trustees of the Estate of Lola Ethel Webb [2011] BCL 762.
(c) courts are to be very slow to find mutual wills just because the parties made corresponding wills.
[16] I now summarise the evidence I heard.
[17] Notwithstanding the differing memories of what was said at the family meeting in March 2002, there was a good deal that was agreed upon by all involved.
[18] After unsuccessful first marriages, Mr Henson and Ms Dornan enjoyed a loving and devoted relationship. They were, in that relationship, equals in every sense. Kymm Henson put it this way in her principal affidavit:
5.Noel and Chris were so in love and so happy to have found each other. They were in their late 40s when they met and were a great match. They had a good 30 years of adventures together. Both of them had had a few bad relationships prior and often spoke of how great life was together.
6.After Noel’s death we all remained very close and Chris was totally entrenched in our lives, as family, as our Step-mum, and Grandmother (Noni) to our daughter Riki. We have spent a lot of time together as a family. We travelled to Stanmore Bay a lot over the last seven years and Chris has visited us several times in Sydney. Also Rebecca and Jonathan, Nicole’s children, had stayed with us in Australia numerous times. They are Riki’s cousins and she loves them very much.
[19] Nicole Bassett described matters in these terms:
14.Mum and Noel Henson met in 1984 when they were both working for the Education advisory service in Wellington. She was in the English as a Second Language department and he was in Reading Recovery. In 1986 she purchased a town house in Bidwell Street. Noel had recently ended a 10 year relationship and was living with a friend in the same complex. They worked together but it was clear that there was a “spark”.
15.I was at this stage living in Auckland and in 1986 after completing my MSc and starting a PhD I went to Europe and then the UK to speak at a prestigious conference in Cambridge. When I returned I went to see mum and we talked for hours about my photos and she talked about Noel. I might have only been 24 years old but that was the kind of relationship we had. Mum talked about Noel a lot.
16.In 1987 mum sold the Bidwell Street property and purchased an iconic Roger Walker House in Highbury Road in Wellington. She was so excited about the house. I went down to Wellington to help her move in and there were lots of people there. Noel was one of
them and it was clear there was more than just a spark. I stayed for several days and during that time we went out to Plimmerton to visit Noel as he had just bought a new house. I remember him saying what a huge mortgage he had.
17.Over the next 12 months they became very close. For me it was clear that Noel was the absolute love of my mother’s life and I felt that maybe she was that for him too. She sold her Roger Walker house and bought into his Plimmerton house and they lived there. They married on 28 May 1988 in their home in Plimmerton, Wellington. It was a special day as the following day was Rhys’s Birthday and I myself got married in April the same year. My son was born in November of 1989 and my daughter in March of 1991.
18.When Noel and Mum got together it was very clear that they made each other extremely happy. Mum talked to me a lot about how happy she was to find her soulmate. She used that exact term to describe their relationship many times over the years. He was very much an old school “meat and 3 vege” sort of bloke when they met and she was more of the art lover, and I think she opened new ideas and ways of doing things for him at a time he was interested in those things. They loved exploring things together.
[20] After their marriage in 1988, Mr Henson and Ms Dornan continued to work together for the Ministry of Education. In 1993 Noel took voluntary redundancy and received “a significant payout”. Ms Dornan continued to work for the Ministry. Using that payout as equity, the couple purchased, renovated and sold or rented a number of houses. Mr Henson did some of that renovation work himself.
[21] In 1996 they sold up and moved to Cable Bay in the far north. They purchased and renovated their home there, developed the downstairs into a boutique holiday stay and invested in a block of flats in Kaitaia and an investment portfolio. They ran a small business in Maunganui.
[22] During their marriage, Mr Henson (an only child) inherited his father’s estate. Ms Dornan received small inheritances from her mother and her great aunt, as well as part of the proceeds of a family holiday home.
[23] I am satisfied that Mr Henson and Ms Dornan “pooled” all their assets: if nothing else, this is reflected by the fact that at Mr Henson’s death all assets were owned jointly so that, without probate being required, Ms Dornan inherited by survivorship.
[24] After they moved to Northland, Mr Henson was diagnosed with prostate cancer, which was successfully treated. He fell ill again in 2000. By the time of his
65th birthday, in March 2002, he was very unwell.
[25] Arrangements were made for all of the children, the three Henson siblings and Nicole Bassett, to spend the weekend of 16–17 March 2002 at their parents’ home in Cable Bay. Given that Gary lived in England and Kymm in Australia, finding the time to be together was not easy. Likewise, John had to travel the not inconsiderable distance from Wellington. For all of them, the fact that their father had told them there were important matters to discuss had featured large in their decision to make the effort to be in Cable Bay that weekend.
[26] In their affidavits, John and Kymm Henson both say they remembered being asked to go to Cable Bay as their father and Ms Dornan wanted to talk to them all. They assumed they were to talk about their father’s health. In his affidavit, Gary Henson did not refer to any communications with his father prior to his arrival at Cable Bay. Having said that, in their affidavits each of the Henson children record a similar narrative of sitting down with their father and Ms Dornan, and Ms Bassett, and being told of the terms of the wills. Everything was left first to the other and then the surviving partner was to divide the property equally amongst the four children. They all also say that their father and Ms Dornan together explained those arrangements, and, moreover, they said that those arrangements would not be changed. Gary and Kymm Henson refer to their father using words to the effect that the arrangements were “set in stone”. In his affidavit, John Henson did not refer to those words, but he also confirmed that his father and Ms Dornan had together told them those arrangements would not change. John and Kymm Henson both referred to their father having said one reason the arrangement was fair was because his father’s estate would be included in the amounts to be distributed to the four children. Gary Henson did not refer to that remark in his affidavit. John Henson also spoke in his affidavit of his father repeating that position when he visited with them some time in 2005.
[27] In her affidavit, Nicole Bassett provided a somewhat different narrative of those events. She recalled the principal reason for the gathering that weekend as
being to celebrate Mr Henson’s 65th birthday, against the background of her mother’s concern that he might not survive to see another birthday, or indeed the following Christmas. She already knew of the provisions of Mr Henson and her mother’s wills. Her mother had told her of those arrangements before the end of
1998. As she put it, her mother had said to her “that since they shared everything it was as if they had four children, not one of hers and three of his”. The discussion about the wills in March 2002 was merely an incidental part of the much greater and more important celebration of Mr Henson’s 65th birthday. During the course of that celebration, there had been a brief discussion when her mother and Mr Henson had explained the arrangements they had made in her will. In her affidavit, Ms Bassett said she was absolutely certain that there was no other discussion, simply advice to the children of the terms of the wills. Words such as “set in stone” were not used. Ms Bassett says she was certain she would have remembered had they been.
[28] Each of the children was cross-examined about their recollection of events as recorded in their affidavits. Gary Henson acknowledged that their father’s birthday had been a reason for the visit to Cable Bay. It was not, however, the main reason. Before he left London his father had told him he and Ms Dornan wanted a family chat, but he had not told him what it was about. He only found that out when they sat down and the conversation began. Gary Henson explained, in response to questions from me, the family discussion in a little more detail. They had all sat down together around a table in the open plan dining/living room, around lunchtime, shortly after Ms Bassett had arrived. His father and Ms Dornan had told them they had important news. His father had said they wanted them to know they were making the decision to split their estate four ways and that that decision would not change in the future. The phrase “set in stone” had been used once. The use of that phrase was not something he had discussed with his sister or brother before preparing his affidavit. The meeting had gone on for about 15 minutes.
[29] Like her brother Gary, Kymm Henson also confirmed in cross-examination the fact that it was their father’s birthday played a part in the decision to travel to New Zealand for that weekend in March. The birthday was, however, never a big deal. The family meeting had been arranged principally because her father and Ms Dornan had something important to tell them. She had been concerned that the
news was going to be something ominous about her father’s health. She was relieved, and a bit light hearted, when the conversation was actually about the wills. She confirmed that it had been very important for her father and Ms Dornan to tell them of the terms of their wills, that their estate would be divided in four parts and those arrangements would not change. Ms Henson recalled the words “set in stone” very clearly. She confirmed, again in response to questions from me, that the weekend meeting may have started off as being for her father’s birthday. Then, as it were, when she had been hesitating about coming, she was told there was important news to convey. That had strengthened her commitment to be there.
[30] Mr John Henson, like his brother and sister, said in cross-examination that his father’s birthday had not been the principal reason for the meeting. Rather, his father and Ms Dornan had something important they wanted to tell them all when they were together at the same time. He had not used the words “set in stone” in his affidavit; nevertheless, he recalled his father using those words.
[31] In her evidence before me, Nicole Bassett confirmed the account of events as given by the Henson siblings, with three important exceptions:
(a) from her perspective, it was Mr Henson’s birthday that was the main
reason for, and focus of, the weekend gathering;
(b)there had been no references by either Mr Henson or her mother to the arrangements being permanent, “set in stone”, or in any way not to be changed; and
(c) the significance of Mr Henson’s father’s estate had not featured in the
conversation at all.
[32] Her evidence was the only specific thing that was mentioned were the arrangements with regard to her mother’s art and antique furniture. In her mind, that was the big thing being discussed – the chattels she had grown up with and the art collection which was of value and great significance to her mother.
[33] Of particular importance to Ms Bassett was the fact that, if her mother had made such a promise to Mr Henson not to change her will, then she would not subsequently have done so. She was a woman of her word: she absolutely would not break a promise she had made to Mr Henson. After Mr Henson’s death, she would not infrequently, when called upon to make decisions, ask aloud what he would have done.
[34] In early May 2002 Mr Henson was diagnosed with terminal melanoma. Although Mr Henson did not die until October 2008, thereafter his health was not good. He required ongoing treatment. In 2006 he and Ms Dornan sold their home and Northland investments and moved to Stanmore Bay in Auckland to be closer to the hospital.
[35] In the last two years of Mr Henson’s life, the couple lost something in the order of $250,000 on their financial investments (representing approximately 50 per cent of the amount invested), principally because of finance company failures.
[36] When Mr Henson died, no issue was raised by any of the children, that is neither the Hensons nor Nicole, as to the fact that all his property went to Ms Dornan. The Henson children’s mother was said to have been concerned. The Henson children accepted the explanation of their father’s and Ms Dornan’s wishes as it had been explained to them that March weekend in 2002.
[37] Ms Dornan kept good health: as late as February 2013 she walked the Milford Track with her friends Heather and Jeff Matthews. In September 2013, however, she was diagnosed with bowel cancer.
[38] After Mr Henson’s death in 2008, Ms Dornan consulted a local Whangaparaoa solicitor, Nola McGowan. As all the couple’s assets were jointly owned, probate was not applied for. Ms McGowan prepared a new will for Ms Dornan. That will omitted the bequest to Mr Henson, and provided, as before, for her estate to be divided equally between each of her three stepchildren and her daughter.
[39] In December 2012, accompanied by her friend and executor Mrs Gandar, Ms Dornan met again with Ms McGowan, and instructed her to change her will. Ms Dornan’s instructions were that she wanted her estate to go in equal parts to her daughter Nicole on the one hand and to the three Henson children on the other. Ms McGowan had two file notes of that meeting: one handwritten and the other typed up. Those two file notes record:
File note
10 December 2012
Met with Christine Dornan and her friend Vere. Discuss with her the contents of will.
She mentioned to me that her assets had reduced the [sic] when she first completed the will. She has a home valued at approximately $1 million and cash investments $300,000.
Although this was the second marriage she had lived with her husband for a number of years. They had contributed equally to the partnership. He had children from his first marriage and she had children from her first marriage. Unfortunately her son died at a young age.
She originally drafted her will whereby her daughter and her stepchildren all shared equally. However after reviewing matters she does not think this is fair. Each family should receive a half share. Her daughter should also receive the benefit of her deceased brothers share.
Accordingly we have drafted the will into two halves of each family receiving a share.
Mrs Dornan acknowledged that she had previously told the children that the would share equally. However on reflection she recognises this is not fair and accordingly this is why she is adjusting the same.
10-12-2012
Rewriting will. Son died age 17. Sister should receive.
1/2 my family 3
1/2 my family 2 (1 alive 1 dead). Told kids feel different equally each. Reduced estate. Feel 1/2
Home $1million, 300,000
650,000 650,000 - 1
- 2
1 First husband not an
easy relationship. May not
- 3 receive from her father. Prewife $1million asset. going to get from mother.
Promise made to leave 4 ways.
[40] In an affidavit filed in these proceedings Ms McGowan explains those file notes in the following way:
12.The deceased wished to change her will. Both file notes refer to the property of the deceased which the deceased considered to be worth about $1,000,000.00 for her home (an apartment) and $300,000.00 investments and cash. Both file notes, and the deceased’s letter, refer to the split of the estate into halves, half to the Henson Family and half to the Dornan Family.
13.Both file notes also give the deceased’s reasons for splitting the estate in this way. The handwritten note refers to Mr Henson’s first wife as “prewife” and I note I was being told that the children of Mr Henson’s first wife (the Hensons) were going to get $1,000,000.00 from her; and I was also told that Nicole may not receive anything from her father (the deceased’s first husband). The handwritten note also mentions promise to leave four ways. This detail is not included in the typed up file note. I have been asked whether I recall anything further about any promise. I do not recall anything more about it and all I can say is that I believe I noted something said to me by the deceased at some point during the attendance, but I did not follow it up and I did not refer to it in the typed up file note.
[41] On 17 December 2012, Ms Dornan executed a new will, prepared by
Ms McGowan on the basis of those instructions.
[42] Approximately a year later Ms Dornan executed a new will. That will substituted the Bassett Family Trust for Nicole Bassett as beneficiary, but was otherwise on the same terms as the December 2012 will. At the same time, Ms Dornan gave Ms McGowan a letter, addressed to Ms McGowan, explaining, again, why she had changed her will. That letter reads:
Nola McGowan Chris Dornan
Vlatkovich & McGowan 32D Langton Road
660 Whangaparaoa Road Stanmore Bay
4/10/13
Dear Nola,
My new, latest, will (2012) reverts to the original will that Noel, my late
husband, and I made in Wellington in the early 1990’s.
In that will our estate when finally settled was to be divided equally – half to
Noel’s children and half to mine.
This reflected the fact that we always contributed equally – financially &
practically to our joint estate.
At a later stage I initiated & Noel agreed that we alter our instructions so that each of our combined four children received 1/4 share – this seemed right for that time.
Time has passed since then and in reviewing my will in 2012 I have decided that the original 1/2 Henson 1/2 Dornan instruction reflects a fair division rather than Henson 3/4, Dornan 1/4.
I enclose a list of certain possessions that are to go to specific people on my death.
Yours sincerely
Chris Dornan “C E Dornan”
“C. E. Dornan” Reconfirmed 5 May 2014
4/10/13
* I would like a copy of this note/letter to go to each of John Henson, Gary
Henson, Kymm Henson, Nicole Bassett after my death.
“C E Dornan” 4/10/13 [Initials]
[43] Ms Dornan met with Ms McGowan again in May 2014. Ms McGowan’s file
note explains the purpose of that meeting in the following terms:
Mrs Dornan came in to see me on 5th May 2014 at 12.00. She wanted to go through her Will and she confirmed the terms of her Will. Again she confirmed she was treating the Estate in two halves i.e. one half for her daughter and one half for her husband’s children. Her daughter is unaware of this and so are her husband’s children. She thought it was fair because they have both contributed to the Estate and her husband had three children and she only one so therefore this is an equal division.
[44] The contents of Ms Dornan’s will came as a surprise to all after her death,
including Nicole Bassett.
Mutual wills?
[45] On the basis of the evidence I heard, I am satisfied that the identical wills Mr Henson and Ms Dornan made in 1998 were, indeed, mutual wills: that is, they were made on the basis that Mr Henson and Ms Dornan agreed that those wills would not be changed, without their mutual agreement whilst they were both living
and not at all after the death of the first of them to die if there had been no prior agreement. I now set out my reasons for reaching that conclusion.
[46] The existence of such an agreement reflects the relationship between Mr Henson and Ms Dornan, not only as they considered it to be but as the four children of their blended family considered it to be. After unhappy marriages they had both found the relationship they had always wanted. They treated each other as equals in that relationship: they shared everything. Thus, after their death, they wished their joint property to be shared equally by the four “children” who were the family of that relationship.
[47] Ms Bassett’s evidence as to the way in which Ms Dornan saw the four children is important in this context. That is, Ms Dornan said it was as if the couple had four children, not one of hers and three of his.
[48] I have accepted the evidence of the Henson children as to the remarks made, in effect jointly, by Mr Henson and Ms Dornan at the family meeting on Sunday
17 March. In doing so, I accept the honesty of the evidence Ms Bassett gave as to her recollections of that meeting. It is clear to me, however, that the Henson siblings and Ms Bassett came to that meeting from different perspectives. The Henson siblings came with a particular focus on the fact that their father had told them he and Ms Dornan had important matters to discuss with them. Naturally, in the circumstances, they thought that would be news, quite possibly bad news, about Mr Henson’s health. Until they were told that day, they did not know the terms of the wills that their father and Ms Dornan had made in 1998. For her part, Ms Bassett already had a reasonably clear view about Mr Henson’s prognosis: she and her mother were concerned that he might not live until Christmas, let alone his next birthday. Ms Bassett also already knew the terms of her mother and Mr Henson’s wills and that it was those terms that her mother and Mr Henson wished to discuss with the children. In that context, it is not surprising that it was on the birthday celebration that she focused. As for the wills, Ms Bassett’s principal concern – as she clearly stated in her affidavit – was with her mother’s paintings and furniture, and that she should receive those under her mother’s will. She agreed, moreover, that she did not expect those terms of her mother’s will to be changed in the future.
[49] I have reflected on the use by Kymm and Gary Henson of the phrase, attributed to their father, “set in stone”. I accept, after careful consideration, that phrase was used by them without collusion, as was indirectly suggested in cross-examination. Whilst Mr John Henson confirmed he recalled that phrase, he did not in fact refer to it in his affidavit. I have some hesitation, therefore, about accepting his evidence as to that recollection. On the other hand, the fact that he did not use the phrase in his affidavit supports my conclusion that its use by his brother and sister was independent and did not reflect collusion. I have also reflected on the coincidence of the use of those words by Ellis J in her decision in Webb, and their use by the Hensons here. I am not in a position to conclude, however, that that is anything other than a coincidence.
[50] There is also Ms Bassett’s admitted “shock” when the contents of her mother’s will were made known. That reaction is also hard to explain in the absence of some basis for an expectation that those wills were not to be changed.
[51] Finally, the circumstances of the family discussion on 17 March, that is:
(a) that Mr Henson had told his children there were important things to be discussed; and
(b)that all agree those things were – as matters transpired – advice as to the terms of their wills,
support the conclusion that those wills were, in a legal sense, mutual. Mr Henson was by then in ill health. If Ms Dornan had the serious concerns she did regarding Mr Henson’s life expectancy, then I think it is probable that he would have shared those concerns as well. In that context there would be little point, in my view, in encouraging his children to come from around the world to hear important news – that is, the terms of his and Ms Dornan’s wills – if those terms were essentially impermanent and liable to change in the future, including after death. That consideration is, in many ways, for me the most telling of the various factors I have reflected on and assessed when reaching my decision.
[52] I therefore find that the trustees of Ms Dornan’s estate are subject to a supervening responsibility to distribute that estate in terms of the will of Ms Dornan of 2008, which in substantive terms reflects the mutual wills Ms Dornan and Mr Henson made in November 1998.
Costs
[53] As requested, I reserve all questions of costs. In doing so, and in the hope that it might provide some guidance to the parties to resolve that issue themselves, I note that I have a very clear view that all parties here have acted in good faith and, in the case of Ms Bassett and the Henson siblings, out of respect for what they consider to be the wishes of their parents.
[54] I acknowledge Ms Bassett’s natural unwillingness to accept that, having made the commitment to Mr Henson that I have found she did, her mother would subsequently change her mind. That she did, is not in my assessment a matter of great moral significance. Nor does it mean that Ms Dornan was not, as her daughter clearly perceives her to have been, a loving woman of high character and great honesty. Rather, it reflects in a very human sense perceptions and sentiments, particularly relating to her son Rhys and the tragedy that his death was for Ms Dornan, that influenced her in the last years of her life.
[55] If the parties are unable to resolve the question of costs, submissions are to be filed within one month of the date of this judgment. No more than four pages should be required from any party.
“Clifford J”
Solicitors:
Gault Mitchell Law, Wellington for Plaintiffs
Vlatkovic and McGowan, Whangaparoa for Defendant
Corban Revell, Henderson for Bassett Family Trust
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