Mills v Laboyrie - [2018] NZHC 1368

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV 2017-419-0213

[2018] NZHC 1368

BETWEEN
TERENCE PATRICK MILLS

Applicant

AND

PAULINE CLAIRE LABOYRIE, KEVIN BERNARD MILLS, MARY DIANNE GEMMEL, DAVID MICHAEL MILLS, LINDA BERNADETTE MILLS, and WAYNE FRANCIS MILLS

Respondents

Hearing: 21, 22 May 2018

Appearances:

M D Branch and K F Shaw for Applicant M S McKechnie for Respondents

Judgment:

11 June 2018

JUDGMENT OF JAGOSE J

This judgment is delivered by me on 11 June 2018 at 4.00pm pursuant to r 11.5 of the High Court Rules.

.....................................................
Registrar / Deputy Registrar

Counsel:
Murray McKechnie, Barrister, Rotorua Harkness Henry, Auckland

Copy to:
Bell & Graham, Matamata

MILLS v LABOYRIE [2018] NZHC 1368 [11 June 2018]

[1] Stephen John Mills died on 14 April 2017, from complications arising from his lengthy illness with multiple sclerosis. Stephen was a draughtsperson with the former Department of Lands and Survey until, I apprehend, progress of the disease forced his retirement.

[2] Stephen was one of eight siblings. His brother, Terence, seeks validation of a document as Stephen’s will. The other six siblings are named as respondents.

[3]I now explain the background to that document.

Document leaves “everything” to Terence

[4] At the time of his death, Stephen lived at 48 Galway Avenue in Hamilton East. The property was his family’s home, where he previously lived with their mother. Their mother’s estate was left equally to the eight children. On their mother’s death, Stephen – with assistance from Pauline, Mary, and Wayne, who left their share of their mother’s estate in the house – acquired his mother’s principal asset, the family home.

[5] Although I am not required to decide its impact in the present proceeding, it appears those four siblings established the Galway Trust by deed dated 5 November 2004. A memorandum of guidance for the Trust dated the same day records they were “purchasing the family property in the name of the Trust”: Stephen contributing 68% of its purchase price by equity and mortgage finance; the balance contributed by the other three. The memorandum states they wished “[t]o primarily provide for security for Stephen during his lifetime and in particular to provide an adequate level of income in retirement (including health care)”. However, Pauline’s solicitor, Kevin Ashley Booth, advised by affidavit sworn 20 September 2017 the mortgagor required Stephen to be the registered proprietor on the property’s title, which he prepared accordingly.

[6] Mr Booth also said Pauline brought Stephen to his office for the preparation of a will in early 2010. A draft will was prepared, providing for equal distribution of Stephen’s estate between his siblings, excluding Linda. Mr Booth advised he understood Stephen was disinclined to benefit Linda under the will, because Linda had wanted their mother’s house sold after her death. Stephen did not respond to Mr Booth

on the draft will. But I note Terence, and presumably also David and Kevin (as well as Linda), took their shares from…

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 Mills v Laboyrie

Details

AGLC: Mills v Laboyrie [2018] NZHC 1368
Case: [2018] NZHC 1368
Decision Date: 11 June 2018

CaseChat Overview and Summary

Mills v Laboyrie is a case involving the validation of a will. Terence Patrick Mills, the brother of the deceased, Stephen John Mills, seeks validation of a document as Stephen's will. The other six siblings, Pauline Claire Laboyrie, Kevin Bernard Mills, Mary Dianne Gemmel, David Michael Mills, Linda Bernadette Mills, and Wayne Francis Mills, are named as respondents. The legal issue before the court was whether the document expressed Stephen's testamentary intentions. The court found that the document, partially completed by Elzonia Cyfert on Stephen's instructions, embodied his desired final distribution of his possessions. The court declared the document to be Stephen's valid will. The costs of the proceeding were reserved for determination on short memoranda of no more than five pages.

The court's reasoning was based on the evidence presented by Elzonia Cyfert, who had assisted Stephen in creating the will. The court found Ms. Cyfert's evidence to be inherently believable, and her correction of her initial affidavit to be a genuine mistake. The court also found that there was no direct contact between Ms. Cyfert and the Justice of the Peace, Kenneth Price, and that Ms. Cyfert's expectation of Mr. Price's attendance had come from her communications with Terence. The court concluded that the partially completed will kit reflected Stephen's testamentary intentions, which were dictated by Stephen to Ms. Cyfert, recorded by her, and read back to him without his demur.

The outcome of the case was that the court declared the original of the document marked "A" annexed to the affidavit of Elzonia Cyfert sworn 3 July 2017 to be Stephen's valid will. The court also reserved the costs of the proceeding for determination on short memoranda of no more than five pages.

Orders