McLean v Public Trust

[2019] NZHC 819

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2017-425-000120

[2019] NZHC 819

IN THE MATTER

of the will of James Alexander McLean

BETWEEN

ALLAN DAVID MCLEAN

Plaintiff

AND

PUBLIC TRUST

Defendant

Hearing:

On the papers

Counsel:

D R Tobin for the Plaintiff

A R Gilchrist for the Defendant
R B Stewart QC and L W Dixon for J M Flaus

Judgment:

15 April 2019

JUDGMENT OF NATION J

Introduction

[1]                   In these proceedings, the plaintiff (Allan), who was self represented at the time of the substantive argument, asked the Court to interpret the will of his father (Mr McLean) in a way which he had been advised was untenable. The proceedings were also brought despite a full settlement of the interpretation issue in earlier proceedings. Mr Flaus, as the surviving trustee in the estate of Allan’s mother, Margaret Ruth McLean (Ruth), was a party directed to be served. He and the Public Trust, as trustee of Mr McLean’s estate, through separate counsel, took an active part in the proceedings.

MCLEAN v PUBLIC TRUST [2019] NZHC 819 [15 April 2019]

[2]                   In my judgment of 12 December 2018, I held the will was to be interpreted in the way that Allan had earlier been advised it would be and in the way contended for by both the Public Trust and Mr Flaus.1 The latter were thus successful.

[3]                   Allan and the Public Trust have agreed to Allan paying costs to the Public Trust on a 2B basis. Mr Flaus was represented by Mr Stewart QC and Patterson Hopkins. Mr Flaus seeks indemnity costs.

[4]                   The proceedings appear to have been driven by the way Allan was aggrieved at the way his father, in his will, had been more generous to a son (John) who was to continue farming the family’s Southland farm. Counsel now again acting for Allan is Mr Tobin. In his memorandum as to costs, Mr Tobin says that, by virtue of a specific gift to John, Allan and his sister Lesley were “disproportionately treated” by Mr McLean relative to John as beneficiaries of Mr McLean’s estate. Allan and Lesley were however recognised by Mr McLean in the will. They were entitled to share in the residue of Mr McLean’s estate but subject to a life interest in favour of his widow Ruth. Allan was also appointed as one of three trustees of his father’s will.

[5]                   Following Mr McLean’s death, John purported to exercise an option that he was given under the will to purchase part of the farm that would otherwise have fallen into the residue of the estate and thus deprived the estate of the potential increase in capital value which Allan, Lesley and John would have been entitled to share in equally as part of the residue.

[6]                   John died unmarried and without issue before Ruth. On his intestacy, his property passed to Ruth. Ruth has now also died.

Proceedings in breach of settlement

[7]                   The…