Livingston v Livingstone - [2013] NZHC 2606

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-003346 [2013] NZHC 2606

UNDER Section 14 Wills Act 2007

IN THE MATTER of the Estate of the late Alfons Franciscus
Antonius Minkhorst

BETWEEN CAROL MARIE LIVINGSTONE, IVAN ERCEG and PATRICIA ROBYN MINKHORST, trustees and executors of the intended Will of the late Alfons Franciscus Antonius Minkhorst (the deceased)
Plaintiffs

ANDCAROL MARIE LIVINGSTONE, IVAN ERCEG and PATRICIA ROBYN MINKHORST, trustees and executors of the last executed Will of the deceased) Defendants

Hearing: 7 October 2013

Appearances: D Watson for Plaintiffs

Judgment: 7 October 2013

ORAL JUDGMENT OF VENNING J

Solicitors: Gibbs Mills Livingstone, Auckland
Copy to: D Watson, Auckland

LIVINGSTONE & ORS v LIVINGSTONE & ORS [2013] NZHC 2606 [7 October 2013]

Introduction

[1] The plaintiffs seek orders validating an intended Will of the deceased Alfons

Franciscus Antonius Minkhorst.

Background

[2] By way of background the plaintiffs are the trustees and executors of the intended Will, which was prepared in Auckland on or about 15 March 2013 by the deceased’s solicitor Ms Livingstone. The defendants are the named trustees and executors of the last executed Will of the deceased dated 3 February 2010.

[3] Directions as to service were obtained. The proceedings have been served on all parties potentially affected, advantageously and disadvantageously, by the orders sought.

[4] To put the matter in context it is necessary to refer to the background in a little more detail.

[5] In his Will of 3 February 2010 the deceased provided certain specific gifts of personal items and chattels to Ms Judith Ann Gray (Judith). The remainder of his furniture and other articles of household use were bequeathed to his two daughters Patricia and Jocelyn. The deceased provided in that Will that the residue was to be held in trust and, after payment of the usual expenses, his residual estate was to be divided as to one part to Judith, one part to Patricia and one to part to Jocelyn. In the case of Patricia and Jocelyn in the event of their pre-deceasing the deceased, their share in the estate was to go to their children. The estate is worth approximately
$600,000. In round figures, if the 2010 Will had been admitted to probate Judith, Patricia and Jocelyn would each have received around $200,000 each.

[6] The intended Will, (the circumstances of how it came to be prepared will be referred to shortly), contained the following key provisions:

The plaintiffs were again appointed trustees and executors.

A specific bequest of $50,000 was made to Judith.

The residue was to be held on trust and, after payment of the usual funeral expenses, was to be divided as to one part to Patricia and one part to Jocelyn. Again, in the event of their pre-deceasing the deceased the children were to
take their mothers’ share.

[7] The practical position is that, on the assumption the estate is worth approximately $600,000 validation of the intended Will would see Judith worse off financially to the extent of about…

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.

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Details

Case: [2013] NZHC 2606
Decision Date: 7 October 2013

CaseChat Overview and Summary

In the case of Livingston v Livingstone, the plaintiffs, who were the trustees and executors of the intended will of the late Alfons Franciscus Antonius Minkhorst, sought orders validating the intended will. The defendants were the trustees and executors of the last executed will of the deceased. The dispute centred on whether the intended will, which had not been executed, should be validated as the deceased's last will. The court was required to decide whether the intended will expressed the deceased's testamentary intentions at the time of his death, despite it not being executed.
The court found that the intended will was a clear expression of the deceased's testamentary intentions at the time of his death. The deceased had instructed his solicitor to prepare the intended will shortly before his death, and there was no evidence that he had changed his mind or that he had forgotten to execute the will. The court noted that the deceased had confirmed his intentions in accordance with the intended will while he was in hospital, just prior to his death. The court concluded that the intended will should be validated as the deceased's last will. The court found that the intended will was a clear expression of the deceased's testamentary intentions, and that the failure to execute the will was due to the deceased's intention to do so but not getting around to it before his death. The court granted the orders sought by the plaintiffs, validating the intended will as the deceased's last will.

Orders