McMillan v Pretty - [2019] NZHC 1094

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-613

[2019] NZHC 1094

IN THE MATTER of the Law Reform (Testamentary Promises) Act 1949

A N D

IN THE MATTER

of the Estate of VALERIE HELEN SVENDSEN

BETWEEN

NEIL PETER MCMILLAN

Plaintiff

AND

PAUL EDWARD PRETTY as Executor of the Estate of Valerie Helen Svendsen

Defendant

AND

LINDA MAY MCCARTHY

Party directed to be served

Hearing: 6 May 2019

Counsel:

A R Gilchrist for Plaintiff M T Arnet for Defendant

R O Parmenter for Ms McCarthy

Judgment:

17 May 2019

JUDGMENT OF BREWER J

This judgment was delivered by me on 17 May 2019 at 3:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

MCMILLAN v PRETTY [2019] NZHC 1094 [17 May 2019]

Introduction

[1] Mr McMillan claims under the Law Reform (Testamentary Promises) Act 1949 (the Act) against Mr Pretty as executor of the estate of Mrs Svendsen. Mr Pretty supports the will but essentially abides the decision of the Court. Mr McMillan’s claim is opposed by Ms McCarthy who, together with Mr McMillan, is a principal beneficiary under Mrs Svendsen’s will.

[2] Mrs Svendsen died on 17 October 2017. Her will, dated 28 August 2017, was granted probate by the Court on 19 January 2019. It provides for three minor bequests, with the residue of the estate (the major part being a house on Waiheke Island) to be divided equally between Mr McMillan and Ms McCarthy.

[3] Mr McMillan claims Mrs Svendsen and her late husband made a promise to him that, in consideration and reward for providing a loan of $185,415.60 interest-free to them in order to renovate the Waiheke Island house, he would inherit the house after their deaths and/or be the primary beneficiary of their wills. His case is that he provided the money as well as various domestic and other services as a loving and dutiful nephew. He seeks to be awarded a full interest in the house.

The law

[4] Section 3(1) of the Act provides that the estate of a deceased person is liable to remunerate persons for work done under promise of testamentary provision:

Where in the administration of the estate of any deceased person a claim is made against the estate founded upon the rendering of services to or the performance of work for the deceased in his lifetime, and the claimant proves an express or implied promise by the deceased to reward him for the services or work by making some testamentary provision for the claimant, whether or not the provision was to be of a specified amount or was to relate to specified real or personal property, then, subject to the provisions of this Act, the claim shall, to the extent to which the deceased has failed to make that testamentary provision or otherwise remunerate the claimant (whether or not a claim for such remuneration could have been enforced in the lifetime of the deceased), be enforceable…

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 McMillan v Pretty

Details

AGLC: McMillan v Pretty [2019] NZHC 1094
Case: [2019] NZHC 1094
Decision Date: 17 May 2019

CaseChat Overview and Summary

The case of McMillan v Pretty involves a claim by the plaintiff, Neil Peter McMillan, under the Law Reform (Testamentary Promises) Act 1949 against the defendant, Paul Edward Pretty, as executor of the estate of Valerie Helen Svendsen. McMillan claims that he is entitled to inherit the Waiheke Island house from the estate of Valerie Svendsen as a testamentary promise made by her and her late husband. The claim is opposed by Linda May McCarthy, another beneficiary under the will. The court had to determine whether a testamentary promise was made and whether it should be enforced against the estate.

The court found that a promise was indeed made in 2007 by Valerie Svendsen and her late husband to leave their house to McMillan in return for him providing a loan of $185,415.60 interest-free for renovations. The court found that the promise was not conditional on McMillan providing further funds in 2011. The court also found that McMillan's evidence was supported by a range of corroborating evidence, including affidavits from various witnesses who had known the Svendsens and were aware of the agreement.

The court assessed the value of McMillan's services and the testamentary promise, taking into account the circumstances in which the promise was made and the services were rendered. The court decided that awarding McMillan three-quarters of the value of the Waiheke Island house was reasonable relief, given the value of the promise and services from the perspective of the deceased, and the detriment McMillan suffered in providing the services.

In conclusion, the court awarded McMillan three-quarters of the net sale price of the Waiheke Island house, with the remaining quarter to be received by Ms McCarthy. The rest of the will remained unchanged, with the remainder of the residue to be divided equally between McMillan and McCarthy. The parties were given the opportunity to make submissions regarding costs.

Orders