Legal Research
Cases
McLean v Public Trust

McLean v Public Trust

Case [2019] NZCA 449 23 September 2019

Statutory Interpretation

Wills & Succession

Type to search within this case.

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA10/2019
[2019] NZCA 449

BETWEEN	ALLAN DAVID MCLEAN Appellant
AND	THE PUBLIC TRUST Respondent

Hearing:	30 July 2019
Court:	French, Mallon and Moore JJ
Counsel:	D R Tobin and R M Reeve for Appellant A R Gilchrist for Respondent R B Stewart QC and L W Dixon for J M Flaus
Judgment:	23 September 2019 at 10 am

JUDGMENT OF THE COURT

A The appeal is dismissed.

B The appellant must pay costs for a standard appeal on a band A basis with usual disbursements to each of the respondent and Mr Flaus as trustee for the estate of Margaret Ruth McLean. We do not certify for two counsel.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Clause 5 of the last will of Mr Alex McLean provides:
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.
A family dispute has arisen over the meaning of cl 5(a). The two competing interpretations are:
(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.
In the High Court, Nation J held the second interpretation was the correct interpretation.[1]
[1]McLean v Public Trust [2018] NZHC 3268.
Dissatisfied with that outcome, the testator’s other son Allan now appeals against that ruling.[2]
[2]We refer throughout this judgment to members of the McLean family by their first name, in order to avoid confusion.
We turn first to explain the background to the case, noting that the only relevant factual material available to us was a brief agreed summary of facts filed in the High Court.[3]

Background

[3]At our request, counsel did provide us after the hearing with affidavit evidence filed by Allan who represented himself in the High Court. The affidavit did not assist us with the construction of the will.

The testator Alex McLean was a farmer. The farm consisted of several blocks of land. The block of land referred to in cl 5(a) was known as the Home Block.
Alex died on 6 April 1989. He was survived by his wife Ruth and their three children, Allan, Lesley and John. Probate of Alex’s last will dated 1 September 1986 was granted on 1 May 1989.
The general scheme of it…

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] NZCA 449
Case: [2019] NZCA 449
Decision Date: 23 September 2019 at 10 am

CaseChat Overview and Summary

The case of McLean v Public Trust involved an appeal by Allan David McLean against the High Court's interpretation of clause 5 of his deceased father's will. The specific issue was whether the gifts to John, Allan's brother, were contingent on John surviving his mother or whether they vested in John upon his father's death. The High Court had ruled in favour of the latter interpretation, holding that John's interest in the specific bequests and devise vested in him on his father's death, subject to his mother's life interest. Allan appealed this decision, arguing that the gifts to John were contingent on him surviving his mother.

The Court of Appeal dismissed Allan's appeal, holding that the High Court's interpretation of clause 5 was correct. The Court noted that the fundamental principle in interpreting wills is to give effect to the intention of the will-maker as expressed in the words of the will. The Court found that the words "upon the death of my said wife" in clause 5(a) clearly denoted a contingency, and that John was only to take a vested interest if he survived Ruth. As John died before his mother, the gift failed. The Court further noted that the general scheme of the will and other clauses did not support Allan's argument that the gifts were intended to vest in John upon his father's death.

The Court of Appeal ordered Allan to pay costs for a standard appeal on a band A basis with usual disbursements to each of the respondent and Mr Flaus as trustee for the estate of Margaret Ruth McLean. The appeal was relatively straightforward, and the Court was not willing to certify for two counsel.

Orders