Morais v Venis - [2022] NZHC 522

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-93

[2022] NZHC 522

UNDER the Declaratory Judgments Act 1908

IN THE MATTER

of the Wills Act 2007

BETWEEN

COLIN ANTHONY FIDELIS MORAIS

Plaintiff

AND

JOSEPHINE DAPHNE VENIS and RANGI RUTH TIAHO BOOTSMA-HEY

Defendants

AND

ROMAN CATHOLIC BISHOP OF THE DIOCESE OF CHRISTCHURCH

Interested Party

Hearing: 8 March 2022

Appearances:

G A Paine for Plaintiff

A M Corry for Defendants
A L Bodman and E R McNally for Interested Party

Judgment:

21 March 2022

JUDGMENT OF MANDER J

This judgment was delivered by me on 21 March 2022 at 3 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date: .

MORAIS v VENIS [2022] NZHC 522 [21 March 2022]

[1] Ms Carol Morais (Carol) passed away on 28 June 2016. The major asset of her estate was her home situated in Bishopdale, Christchurch (the property). In her will, Carol directed the property be gifted to the Sisters of Mercy. However, they had no use for it. In such an event, her will further provided that it was to be left to the Roman Catholic Bishop of the Christchurch Diocese (the Bishop).

[2] Mr Colin Morais (Colin) is Carol’s brother. He claims the property has not been distributed in accordance with the terms of the will and his sister’s wishes. He says that it should pass to him. He has brought proceedings seeking declarations that Carol’s gift to the Bishop was a contingent gift, subject to a term relating to the use of the house which has failed, and that the Bishop holds the property on trust for him.

Background

[3] Carol immigrated to New Zealand with her family in 1994 and settled in Christchurch. It appears her parents became estranged and her father returned to Malaysia before passing away in 2007. Carol and her mother remained living together at the Bishopdale property which she inherited through survivorship after her mother’s death in 2014. Carol was a devout Catholic. In addition to the property, the terms of her will also provided numerous bequests to the Catholic Church for various defined purposes. It is clear that Carol placed great store on her religious values and beliefs. This is apparent not only from her will but from the documented wishes she expressed regarding the disposition of the property and her cherished personal possessions.

The will

[4] Carol’s last will was executed on 21 August 2015 and was admitted to probate on 2 August the following year (the will). It provided for the appointment of two of Carol’s closest friends to be her executors and trustees, the defendants, Ms Josephine Venis and Ms Rangi Bootsma-Hey (the executors). The will provides for the disposition of the property in the following way:

5. I DIRECT that my property I currently reside in situated at 238a Harewood Road, Bishopdale, Christchurch be left to the SISTERS OF MERCY, Christchurch for the exclusive use of their…

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 Morais v Venis

Details

AGLC: Morais v Venis [2022] NZHC 522
Case: [2022] NZHC 522
Decision Date: 21 March 2022

CaseChat Overview and Summary

Morais v Venis is a case that concerns the interpretation of a will and the distribution of a property left by Carol Morais to the Sisters of Mercy, and subsequently to the Roman Catholic Bishop of Christchurch Diocese. Carol's brother, Colin Morais, argued that the bequest to the Bishop was a contingent gift, subject to a term relating to the use of the house, which had failed, and that the Bishop holds the property on trust for him. Colin brought proceedings seeking declarations to this effect.

The court was required to decide whether the gift to the Bishop was a contingent gift subject to a condition that the property could only be used by the "Canons" and whether the Bishop had disclaimed the gift by permitting the property to be let to a family. The court also needed to determine whether the term "exclusive use" imposed a restriction on how the canons of the Diocese could put the property to use and whether the use of the property by the Bishop breached the terms of the bequest.

The court found that the term "Canons" in the will referred to priests or similar members of the clergy within the diocese and that the term "exclusive use" did not impose a restriction on the ways in which the property could be used for the benefit of the canons. The court concluded that the gift to the Bishop was not subject to a condition that the property must be exclusively occupied by the diocese's priests. The court also found that the Bishop had not disclaimed the gift and that his use of the property did not breach the terms of the bequest. The court dismissed Colin's application for declaratory judgment.

The court also considered alternative defences raised by the executors and the Bishop, including abuse of process and estoppel. However, these defences were ultimately moot given the court's findings on the merits of the proceeding.

Orders