Humphreys v Grainger - [2013] NZHC 3371

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-9950 [2013] NZHC 3371

IN THE MATTER OF the estate of Bruce David Grainger

BETWEEN

RAYMOND MURRAY HUMPHREYS Plaintiff

AND

AMANDA JANE GRAINGER First Defendant

CATHERINE MARIE GRAINGER Second Defendant

MARK DAVID GRAINGER Third Defendant

THE CHRISTCHURCH KIDNEY SOCIETY INCORPORATED Fourth Defendant

Hearing: On the papers

Counsel:

A C Hughes-Johnson QC and R B Sandford for Plaintiff
R L D Paul for First Defendant
B J Pelham for Second and Third Defendants
B J Callaghan for Fourth Defendant

Judgment:

16 December 2013

JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is
11 am on the 16th day of December 2013.

Solicitors: Anderson Sandford Allen, Riccarton, Christchurch, for Plaintiff
Wynn Williams, Christchurch, for First Defendant
Brian Pelham, Riccarton Family Law, Christchurch, for Second and Third
Defendants
McGillivray Callaghan & Co, Christchurch, for Fourth Defendant

HUMPHREYS v GRAINGER [2013] NZHC 3371 [16 December 2013]

[1] This proceeding is an application for grant of probate in solemn form, and ancillary orders. The parties are agreed on the terms of an order. I can therefore deal with the matter on the papers.

[2] The deceased (Mr Grainger) died on 23 August 2013. He left a will dated

26 September 2012. That is the will of which probate is sought.

[3] When the will was made, Mr Grainger was in hospital. He had been advised by his doctor to get his affairs in order. A solicitor, Mr Sandford, was instructed, through the Christchurch Kidney Society Inc., to attend Mr Grainger. Mr Sandford made immediate arrangements to go with his legal executive Mrs Panirau to visit Mr Grainger at Christchurch Hospital. Mr Sandford took instructions which he recorded in a note. Because he was concerned about Mr Grainger’s condition, he instructed Mrs Panirau to prepare a handwritten will reflecting his instructions. That handwritten will was signed by Mr Grainger and duly witnessed.

[4] Mr Sandford and Mrs Panirau then returned to their office where a more formal document was prepared. They returned to the hospital that afternoon and Mr Grainger signed the typewritten will. That is the document of which probate is sought.

[5] On those facts, the matter is straightforward and an application for probate in common form would have been appropriate. The applicant has however elected to make application in solemn form because of several potential difficulties with the will.

[6] In the will, Mr Grainger left a half share in his house property to “my ex wife Amanda Marie Grainger”. Mr Grainger had two ex-wives. One was named Catherine Marie Grainger and the other Amanda Jane Grainger. The name in the will is wrong. Because one name of each of the ex-wives was used, there is potential uncertainty as to which was intended. The circumstances disclosed by the affidavits indicate quite clearly, and all parties accept, that the ex-wife referred to is Amanda Jane Grainger.

[7] There is another potential difficulty with that gift in the will. Mr Grainger…

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 Humphreys v Grainger

Details

AGLC: Humphreys v Grainger [2013] NZHC 3371
Case: [2013] NZHC 3371
Decision Date: 16 December 2013

CaseChat Overview and Summary

The High Court of New Zealand was asked to grant probate of the will of Bruce David Grainger, who had passed away on 23 August 2013. The will, dated 26 September 2012, was being contested by Raymond Murray Humphreys, who was applying for grant of probate in solemn form. The other defendants in the case were Amanda Jane Grainger, Catherine Marie Grainger, and the Christchurch Kidney Society Incorporated. The legal issues before the court were whether the court could amend the will to correct a clerical error, to clarify which ex-wife was intended to be the beneficiary, and to interpret the relationship between the will and a prior Relationship Property Agreement. The court found that the evidence supported amending the will to correct the clerical error, to specify the correct ex-wife as the beneficiary, and to clarify the relationship between the will and the prior agreement.

The court granted the application for probate, with amendments to the will. The court found that the evidence satisfied it that the deceased intended to refer to Amanda Jane Grainger, and that the name of the executor should also be amended. The court also found that external evidence could be used to interpret the will to resolve any ambiguity or uncertainty, and that the interpretation proposed in the order was correct. The court made orders to amend the will to record the correct name of the executor and beneficiary, and to clarify the relationship between the will and the prior agreement. The court also ordered that the costs of the application be paid from the estate.

Orders