McLean v Public Trust - [2019] NZSC 136

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 110/2019
[2019] NZSC 136

BETWEEN	ALLAN DAVID MCLEAN Applicant
AND	PUBLIC TRUST Respondent

Court:	Glazebrook, O’Regan and Ellen France JJ
Counsel:	D R Tobin and R M Reeve for Applicant A R Gilchrist for Respondent R B Stewart QC and L W Dixon for Mr Flaus
Judgment:	6 December 2019

JUDGMENT OF THE COURT

AThe application for leave to appeal is dismissed.

BThe applicant must pay one set of costs of $2,500 to be divided equally between the respondent and Mr Flaus as trustee for the estate of Mrs Ruth McLean.

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REASONS

Introduction

The applicant, Allan McLean, brought a proceeding in the High Court concerning the construction of the will of his late father, James Alexander McLean (Mr McLean). Nation J in the High Court found against the applicant[1] and that decision was upheld on appeal by the Court of Appeal.[2] The applicant now seeks leave to appeal against that decision.

Background

[1]McLean v Public Trust [2018] NZHC 3268.

[2]McLean v The Public Trust [2019] NZCA 449 (French, Mallon and Moore JJ) [CA judgment].

The factual background is set out in the judgment of the Court of Appeal.[3] We need only note the following matters.
[3]At [1]–[20].
First, Mr McLean’s last will bequeathed the “rest residue and remainder” of his estate to his trustees upon a number of trusts permitting his wife, Ruth McLean (Mrs McLean), to for example: occupy the family home; be paid the net annual income arising from the estate during her life; and, if necessary, resort to capital to make up the income to a sufficient amount for her “proper maintenance”.
The next clause in the will was as follows:
5.        UPON the death of my said wife:
(a)       I GIVE DEVISE AND BEQUEATH all my farming plant and machinery, Four Hundred (400) Ewes and that piece of land known as Section 46 Block X New River Hundred containing 32.3635 hectares and being all of the land in Certificate of Title 21/212 to my said son JOHN McLEAN.
(b)       TO HOLD the balance of my residuary estate for such of them my children as survive me and if more than one as tenants in common in equal shares.
Second, as the Court of Appeal notes, the dispute over the meaning of the will concerns two competing interpretations of clause 5, namely:[4]
(i)the gifts comprised in cl 5(a) were contingent on John surviving his mother and therefore, because John died before his mother, the gifts fell into the residuary estate to be disposed under cl 5(b).
(ii)the gifts comprised in cl 5(a) vested in John on his father’s death subject only to the life interest of his mother.
[4]At [2].
The applicant’s case is that the first interpretation is correct. On that basis, because his brother, John, did not survive their mother, he says John’s estate is not entitled to all of the cl 5(a) gifts. Instead, the specific…

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 McLean v Public Trust

Details

AGLC: McLean v Public Trust [2019] NZSC 136
Case: [2019] NZSC 136
Decision Date: 6 December 2019

CaseChat Overview and Summary

In the Supreme Court of New Zealand, Allan David McLean sought leave to appeal a decision of the Court of Appeal that had dismissed his appeal against the High Court's construction of the will of his late father, James Alexander McLean. The will bequeathed the residue of the estate to the trustees, with provisions for the late mother of the applicant to occupy the family home and receive income from the estate during her life. Upon her death, the will provided that specific items of farming equipment and land would be given to the applicant's brother, John McLean. The residue of the estate was to be held for any surviving children of James McLean. The central dispute was the interpretation of the clause concerning the bequest to John McLean.

The legal issues in the case revolved around the interpretation of clause 5 of the will. Specifically, whether the bequest to John McLean was contingent upon his survival of his mother, or whether it vested in John upon his father's death, subject only to his mother's life interest. The applicant argued for the former interpretation, contending that because John predeceased his mother, the bequest to him failed and the assets should be distributed according to the residue clause. The Court of Appeal, however, had upheld the High Court's decision that the bequest vested in John at the time of his father's death.

The Supreme Court assessed the applicant's arguments for leave to appeal, noting that the interpretation of the will was a question specific to the facts of the case. The Court found that the established principles of will interpretation applied, and that the applicant's arguments did not present any questions of general or public importance. The Court also found that the other provisions in the will did not sufficiently alter the interpretation of clause 5. The Court concluded that the construction of the will by the Courts below was sound and that no miscarriage of justice had occurred.

The Supreme Court dismissed the application for leave to appeal. The applicant was ordered to pay costs of $2,500, to be divided equally between the Public Trust and John Flaus, the executor of the estate of Ruth McLean.

Orders