McNeish v McArthur - [2019] NZHC 3281

For a Court ready (fee required) version please follow this link

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000789

[2019] NZHC 3281

UNDER Part 18 of the High Court Rules 2016

IN THE MATTER

of the Estate of Ian James McArthur

BETWEEN

DARYL WARREN McNEISH and JOANNE MARIE McNEISH

Plaintiffs

AND

JAMES McARTHUR

Defendant

Hearing: 2 and 3 December 2019

Appearances:

D J Ballantyne and C J Cousins for the Plaintiffs

S D Campbell and J J Anson-Holland for the Defendant

Judgment:

12 December 2019

JUDGMENT OF DOOGUE J

Introduction

[1] Ian and Lorraine McArthur married in 1984. They had both been married before and had children to their previous partners.

[2]This proceeding concerns the validity of Ian’s will, dated 5 March 2013.

[3] The plaintiffs, Daryl and Joanne McNeish (Lorraine’s children), seek a declaration that Ian’s will is in breach of mutual wills made by Ian and Lorraine on 18 December 2002. They therefore seek for Ian’s estate (the Estate) to meet his obligations under that earlier (and now revoked) will. The defendant, James McArthur

McNEISH v McARTHUR [2019] NZHC 3281 [12 December 2019]

(Ian’s son), is Ian’s oldest son and the sole executor of the Estate. He has five siblings: Jennifer McArthur, Andrew McArthur, Joseph McArthur, John McArthur and Yvonne McArthur.

Background

[4] Ian and Lorraine’s first known wills are those signed and executed on 15 May 1994 (First Wills). The effect of the First Wills was that in the event of Ian’s death, the Estate would pass to Lorraine and vice versa. But if either Ian or Lorraine was not survived by the other, their estate would pass in equal shares to their respective children. The First Wills were materially identical except for a provision in Lorraine’s will stating that if she was not survived by Ian, her rocking chair, her grandmother’s dishes and cake plates and her personal jewellery would all pass to her daughter Joanne McNeish before her residual estate was to be evenly distributed to her children and Ian’s children.

[5] In December 2002, Ian and Lorraine instructed their solicitors to prepare new wills for them. Two materially-identical wills were prepared leaving, amongst other things, their respective estates to the survivor of them or, in the event the other did not survive them, a one-half share of their estate to their respective children. On 18 December 2002, Lorraine executed a will to this effect (Lorraine’s Will) and Ian did the same (Second Will).

[6] In July 2003, Lorraine was diagnosed with metastatic ovarian cancer. As a result, sometime later in 2004 she and Ian decided to move from Reefton on the west coast of the South Island to Brisbane, Australia to be close to Lorraine’s children and grandchildren. Lorraine and Ian gave Lorraine’s son Daryl instructions to purchase a home for them in Brisbane and provided him with a significant sum of money as a deposit on any property he chose to purchase for…

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 McNeish v McArthur

Details

AGLC: McNeish v McArthur [2019] NZHC 3281
Case: [2019] NZHC 3281
Decision Date: 12 December 2019

CaseChat Overview and Summary

The case of McNeish v McArthur involved a dispute over the validity of Ian McArthur's will, dated 5 March 2013. The plaintiffs, Daryl and Joanne McNeish, sought a declaration that Ian's will was in breach of mutual wills made by Ian and Lorraine McArthur on 18 December 2002. The defendant, James McArthur, Ian's son, was the executor of Ian's estate. The key issue was whether Ian and Lorraine's wills were mutual wills, such that Ian was contractually bound not to revoke his will without Lorraine's knowledge.

The court found that while Ian and Lorraine had executed mirror wills in 2002, there was insufficient evidence to establish a mutual agreement that neither would revoke their wills. The court found that the wills were made based on an honorary agreement of mutual expression of desire, rather than a binding contract. The court also found that Ian's subsequent wills did not indicate a belief that he was bound by the 2002 wills. The court held that the doctrine of mutual wills requires clear and cogent proof of a binding agreement, which was not present in this case.

The court concluded that there was insufficient evidence to establish that Ian and Lorraine's wills were mutual wills, and dismissed the plaintiffs' claim. The court noted that all parties had acted in good faith and out of respect for what they considered to be the wishes of their parents. The court reserved the question of costs.

Orders