Henson v Gandar - [2016] NZHC 841

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 Trust

Judgment:

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…

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 Henson v Gandar

Details

AGLC: Henson v Gandar [2016] NZHC 841
Case: [2016] NZHC 841
Decision Date: 29 April 2016

CaseChat Overview and Summary

The case of Henson v Gandar involves a challenge to the will of Christine Ellen Dornan. The plaintiffs, the Henson siblings, claim that the wills made by their father and Ms Dornan in November 1998 were mutual wills, meaning that neither party would change those wills without the other's agreement. They argue that Ms Dornan's subsequent decision to leave her property in equal parts to her daughter and the Henson siblings was a breach of that agreement. The key legal issue the court had to decide was whether the wills made by Mr Henson and Ms Dornan in 1998 were mutual wills. The court found that the wills were indeed mutual wills, based on the evidence of the Henson siblings and the nature of the relationship between Mr Henson and Ms Dornan. The court concluded that the terms of Ms Dornan's estate should be distributed in accordance with the mutual wills made in 1998. The court reserved all questions of costs, encouraging the parties to resolve the issue themselves.

Orders