McLean v Public Trust - [2018] NZHC 3268

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2017-425-000120

[2018] NZHC 3268

UNDER the Declaratory Judgments Act 1908

IN THE MATTER

of the will of James Alexander McLean

BETWEEN

ALLAN DAVID MCLEAN

Plaintiff

AND

PUBLIC TRUST

Defendant

Hearing: 27 November 2018

Appearances:

A D McLean (Plaintiff) in person A R Gilchrist for the Defendant

R B Stewart QC and L W Dixon for J M Flaus

Judgment:

12 December 2018

JUDGMENT OF NATION J

[1] James Alexander McLean (Mr McLean) was a farmer in Southland. He died on 6 April 1989 leaving a will dated 1 September 1986. Probate was granted to his widow Ruth and his sons Allan and John. He was also survived by his daughter Lesley. In his will, Mr McLean left a life interest in his estate to his widow. Upon the death of his wife, he bequeathed farm plant and machinery, some stock and a central part of his farm, known as the home block, to his son John. He left the balance of his residuary estate for such of his children as survived him in equal shares.

MCLEAN v PUBLIC TRUST [2018] NZHC 3268 [12 December 2018]

[2] John died without a will on 24 July 2010, unmarried and without issue. The whole of his estate passed to his mother Ruth as his surviving parent under the provisions of the Administration Act.1

[3] Mr McLean’s widow, Ruth, died on 30 July 2017. Under her will, she left her interests in the Southland farm to Allan’s former wife, Allan’s son, Allan’s daughter and the daughter of Ruth’s daughter Lesley. She gave the residue of her estate to be divided among such of her grandchildren who survived her and reached the age of 20.

[4] In these proceedings, the plaintiff, Allan McLean, says that, under his father’s will, the gifts of stock, land, plant and machinery and the share of the residue to John were contingent upon John surviving Ruth. Because John did not do so, that property fell into the residuary estate so it should now be divided equally between Allan and his sister Lesley.

[5] The present trustee of Mr McLean’s estate is the Public Trust which was appointed by Court order dated 1 September 2016.

[6] The proceedings were directed to be served on the then executors and trustees of the will of Margaret Ruth McLean, Allan’s sister Lesley and the four named beneficiaries of Ruth’s will. John Malcolm Flaus is the surviving trustee of Ruth’s estate.

[7] Statements of defence were filed on behalf of the Public Trust as the now trustee of Mr McLean’s will, and on behalf of John Flaus.

[8] On 21 August 2018, Associate Judge Osborne directed there should be a trial of the following question:

Whether, on their true construction, the gifts comprised in clause 5 of the Will of James Alexander McLean dated 1 September 1986 (probate of which was granted to Margaret Ruth McLean and John…

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 [2018] NZHC 3268
Case: [2018] NZHC 3268
Decision Date: 12 December 2018

CaseChat Overview and Summary

The case of McLean v Public Trust, heard in the High Court of New Zealand, involved a dispute over the interpretation of the will of James Alexander McLean, who passed away in 1989. Allan David McLean, one of the beneficiaries of the will, argued that the gifts to his brother John, who predeceased their mother, should fall into the residue of the estate and be divided equally between Allan and his sister Lesley. The primary legal issue was whether the gifts to John were contingent on his survival of their mother, Ruth, or if they vested in John upon James's death. The court found that the gifts vested in John upon James's death and were not contingent on John surviving Ruth. The court based its decision on the principle of giving effect to the testator's intention as expressed in the will, and the established rule that a bequest in the form of a direction to divide at a future period vests immediately if the payment is postponed for the convenience of the estate or to let in some other interest. The court also found that the failure to identify the 400 ewes referred to in the will did not result in the bequest failing, as the gift would have taken effect in the remaining assets. The Public Trust and John Malcolm Flaus, as the executor of Ruth's estate, were successful in the case and were entitled to costs.

Orders