Legal Research
Cases
Kirner v Falloon

Kirner v Falloon

Case [2015] NZHC 1873 10 August 2015

Contract Formation

Unconscionable Conduct

Res Judicata

Admissibility of Evidence

Breach of Contract

Fiduciary Duty

Succession Law

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2015-409-000133 [2015] NZHC 1873

UNDER Section 14 of the Wills Act 2007

IN THE MATTER OF

the Estate of RACHEL GLORIA KIRNER

BETWEEN

RIANA SARAH KIRNER Applicant

AND

GEOFFREY ALAN FALLOON AND MICHAEL HERBERT RATTRAY Respondents

Hearing:
23 July 2015

31 July 2015 (further telephone conference)

Appearances:

R Peters for Applicant
B Green and J Morgan for Respondents

Judgment:

10 August 2015

JUDGMENT OF DAVIDSON J

The application

[1] The applicant, Ms Riana Kirner (Riana), has applied for a declaration under s 14 of the Wills Act 2007 (the Act) that a document with the date “13-12-13” (the
2013 Document) is a valid Will of Ms Rachael Kirner (the Deceased). Additionally, Riana seeks a grant of probate in solemn form in relation to the Will she seeks to be declared valid, and an order that costs be paid from the estate of the Deceased. If the Will is not validated, the Deceased’s Estate will devolve on an intestacy.

[2] The application is opposed by the respondents, Messrs Geoffrey Falloon and

Michael Rattray, who are the administrators of the Estate of George Arthur Kirner

(George), Riana’s father, who died on 25 June 2014.

KIRNER v FALLOON AND RATTRAY [2015] NZHC 1873 [10 August 2015]

[3] I must determine whether the document in question should be declared a valid Will under s 14. In doing so I must determine whether the s 14(1) ‘gateway’ has been passed. This requires the applicant to establish that there is a document that appears to be a Will, does not comply with s 11 of the Act, and came into existence in or out of New Zealand. If these requirements are established, the applicant must satisfy the Court to the civil standard that “the document expressed the deceased
person’s testamentary intentions”.1

Background

Status of Riana’s father

[4] It is first important to set out the position of George, who was the husband of the deceased. He executed a Will on 26 June 2014, some six days after the death of his wife, and only two days before his own death. His trustees say that this Will was executed in the expectation that he was the sole beneficiary of the Deceased’s estate by virtue of an intestacy.

[5] While not determinative, the practical value of this proceeding is questionable. A letter written by the respondents dated 6 May 2015 recorded that the value of the Deceased’s estate at her death was approximately $102,088.96. After payment of funeral expenses and debts, the total amount for distribution would be approximately $90,000. The value of George’s distributable estate after payment of debts and funeral expenses would be approximately $30,000.

[6] The letter then moves to consider the net benefit Riana would receive under each of three possible outcomes. The first is if the 2013 document is not validated and the Deceased’s estate would pass to George. In this situation, his total estate would be $120,000. From this, legacies of $55,000 would…

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 Kirner v Falloon

Details

AGLC: Kirner v Falloon [2015] NZHC 1873
Case: [2015] NZHC 1873
Decision Date: 10 August 2015

CaseChat Overview and Summary

The case of Kirner v Falloon and Rattray involved an application by Riana Kirner, the daughter of the deceased Rachael Kirner, to have a document dated 13 December 2013 declared as the valid will of Rachael. Riana sought a declaration under section 14 of the Wills Act 2007, along with a grant of probate and an order for costs to be paid from the deceased's estate. The application was opposed by Geoffrey Falloon and Michael Rattray, the administrators of Rachael's husband George Kirner's estate. The primary issue before the court was whether the 2013 document expressed Rachael's testamentary intentions and thus could be declared a valid will under section 14 of the Act. The court needed to determine whether Rachael's testamentary intentions were clearly and cogently established on the balance of probabilities.

The court examined the evidence provided by Riana, including a letter allegedly written by Rachael to Riana and the 2013 document itself. However, the court found significant deficiencies in the evidence, including a lack of credible proof that the document was written and signed by Rachael, and no evidence of Rachael's testamentary intentions. The court also highlighted the suspicious circumstances surrounding a late-emerging email from a supposed witness. The court concluded that Riana had not met the burden of proof required under section 14, and the application was declined. The court outlined the steps that could have been taken to better support the application, emphasizing the need for robust evidence to demonstrate the deceased's testamentary intentions. Costs were reserved.

Orders