Morais v Venis
[2022] NZHC 522
•21 March 2022
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 PartyJudgment:
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 Sisters. IF the SISTERS OF MERCY shall no longer require the property or have a use for it. I DIRECT the property to be left to the ROMAN
CATHOLIC BISHOP OF THE DIOCESE, Christchurch for the exclusive use of their Canons.
5.1 I EXPRESS the wish that the property is not to be sold.
6. IF my property at 238a Harewood Road, Bishopdale are not able to be distributed according to my wishes, I GIVE the house to my brother COLIN ANTHONY FIDELIS MORAIS, of Timaru, to keep for himself to delegate according to my wishes recorded in the envelope marked “CAROL’S WILL AND PERIPHERAL MATTERS”.
…
[5] Ms Indira Sirisena was Carol’s lawyer who assisted her with the preparation of the will and was engaged by the executors to prepare the estate for distribution in accordance with its terms. Ms Sirisena knew Carol reasonably well, having been her lawyer for some 20 years. On 29 November 2016, she was informed by the Sisters of Mercy they would be unable to use the property and the gift was declined. In accordance with the terms of the will, the property was then offered to the Bishop. On 11 January 2017, the Bishop informed the executors the bequest of the property was accepted and that the diocese would “uphold the intent of the will at every possible avenue”.
Testamentary promise claim
[6] In July 2017, Colin filed a claim under the Law Reform (Testamentary Promises) Act 1949 alleging he and his sister had made mutual promises that the surviving sibling would enjoy a life interest in the home of the other and that Carol made a verbal agreement that, if she predeceased him or entered a rest home, he could live in the property for the rest of his life. On 12 December 2019, the Family Court dismissed Colin’s claim. Judge Lindsay concluded that no promise had been made by Carol and that the estate fell to be distributed in accordance with the terms of the will.1
Transfer to Diocese
[7] The property was transferred to the Diocese on 20 March 2020, after an appeal against the Family Court’s decision was formally abandoned by Colin earlier that
1 Morais v Venis [2019] NZFC 10322.
month. There matters rested until in November 2020 the property was let to a family seeking rental accommodation pending the completion of their new home. This was expected to be completed by July the following year, although delays resulted in the tenancy not ending until a year later in November 2021.
The application for declaratory relief and the parties’ respective positions
Colin’s claim
[8] It appears that in late March 2021, after Colin became aware of the use to which the property was being put, he commenced proceedings against the executors. Colin claims the gift of the property to the Bishop was a contingent gift that had not been perfected. He says, because it was not being used in accordance with the terms of the will, for the exclusive use of the diocese’s “Canons”, the gift had therefore failed. Such an outcome, he argues, should result in the property being given to him. In August 2021, Associate Judge Paulsen directed that the Bishop be served with the proceeding as an interested party, although this was not effected until 4 October of that year. Both the executors and the Bishop oppose Colin’s interpretation of the will.
[9] Colin’s claim for declaratory relief rests on two propositions. First, the gift to the Bishop was subject to a condition that the property could only be used by its “Canons”. Second, by permitting the property to be let to a family, the Bishop had, by his conduct, disclaimed or abandoned the gift, he having found the fulfilment of the condition to be too onerous. As a result, cl 6 of the will came into effect because the property had not been able to be distributed according to Carol’s wishes and was therefore required to be given to Colin “to keep for himself”. Colin argued the Bishop now held the property on trust for him, and that it was to be dealt with at his direction.
The executors’ and Bishop’s opposition
[10] Both the executors and the Bishop reject Colin’s interpretation of the will and that the use to which the property has been put does not accord with its terms. They argue the effect of the will is to gift the property absolutely to the Bishop, albeit with accompanying wishes that it be used for the purposes of the Catholic Church and not sold, and that title has passed to the Bishop in the wake of Colin’s unsuccessful
litigation in the Family Court. Further, they say that the will does not create any condition precedent that is required to be completed in order to perfect the gift.
Interpretation of a will generally
[11] The fundamental task when constructing a will is to ascertain the intention of the will-maker.2 Rules, canons or principles of construction are simply an aid to determining the intention of the will-maker.3 The starting point on any question of interpretation is the words of the will-maker.4 In addition, if Carol’s will does give rise to ambiguity or uncertainty, external evidence can be utilised to interpret the words of the will, in order to determine her testamentary intentions. Section 32 of the Wills Act 2007 provides:
32 External evidence
(1)This section applies when words used in a will make the will, or part of it,—
(a)meaningless; or
(b)ambiguous on its face; or
(c)uncertain on its face; or
(d)ambiguous in the light of the surrounding circumstances; or
(e)uncertain in the light of the surrounding circumstances.
(2)The High Court may use external evidence to interpret the words in the will that make the will or part meaningless, ambiguous, or uncertain.
(3)External evidence includes evidence of the will-maker’s testamentary intentions.
(4)The court may not use the will-maker’s testamentary intentions as surrounding circumstances under subsection (1)(d) or (e).
2 Perrin v Morgan [1943] AC 399, [1943] 1 All ER 187 (HL) at 190 applied in Re Thompson [1993] 1 NZLR 1 (CA); Re Beckbessinger [1993] 2 NZLR 362 (HC); and Wilson v Davidson [2017] NZCA 468.
3 Re Beckbessinger, above n 2, at 371 (HC)
4 Lindsay Breach Nevill’s Law of Trusts, Wills and Administration (online 13th ed, Lexis Advance, 2018) at 481.
Meaning of the term “Canons”
[12] A preliminary issue which garnered some attention was the meaning of the term “Canons”. Clause 5 of the will provides that, in the event of the Sisters of Mercy no longer requiring the property or having a use for it, the property is to be left to the Bishop “for the exclusive use of their Canons”. Words and expressions contained in a will are generally given their natural and ordinary meaning.5 It is presumed that technical words, which canon arguably is, are given their technical meaning.6
[13] The Bishop called evidence from Monsignor Brendan Daly, who holds the position of Judicial Vicar of New Zealand and is an expert in canon law. His opinion was that the term “canon” can be used in two ways. First, as a reference to a position within the church. He considered a canon in the Catholic Church would be understood by laypersons to be a priest or member of the clergy working in the local diocese. Second, the term can be used as a reference to a fundamental body of ecclesiastical laws of the church. Monsignor Daly’s evidence was not disputed. I am satisfied the meaning of “canon” is sufficiently uncertain for me to consider this external evidence under s 32.
[14] I consider, from the context of cl 5, the use of the word “Canons” in that part of the will is intended to be a reference to priests or similar members of the clergy such as a curate or seminarian. Carol’s will provides, in the first instance, for the property to be left to the Sisters of Mercy “for the exclusive use of their Sisters”. Should that not prove possible, cl 5 then provides what is effectively a mirror bequest that the property be left to the Bishop “for the exclusive use of their Canons”. The term “Canons” in the second part of the clause has been used in the same way the term “Sisters” was employed earlier, and is intended to refer to persons holding a religious position within the diocese, such as its priests. In any event, while some focus was given by the parties to this issue, I consider little turns upon it.
5 Re Williams [1980] 1 NZLR 300 (CA); and Re Thompson, above n 2 cited in Breach, above n 4.
6 Falkiner v Commissioner of Stamp Duties [1973] AC 565, [1972] 2 NSWLR 839 (PC). See Re Cook [1948] Ch 212, [1948] 1 All ER 231.
The meaning of “exclusive use”
[15] Colin’s argument regarding the effect of cl 5 of the will is based on the premise that the term “exclusive use” places a restriction on how the sisters of the Sisters of Mercy or the canons of the Diocese can put the property to use, and that, in the absence of these persons physically occupying or living in the property, the gift must fail. I consider this to be an unnecessarily narrow interpretation of cl 5 which is not consistent with the terms of the clause when read as a whole7 and its words placed in proper context. There are a number of features of this part of the will that lead me to this conclusion.
[16] The direction that the property be left to the Bishop for “the exclusive use” of its canons is not limited to a particular use of the property, such as its occupation or use as accommodation. The will-maker’s deployment of the term “exclusive” is for the purpose of reserving the benefit of the gift to a particular group, but it does not qualify the “use” to which the property can be put in order to benefit the diocese’s canons, nor does it impose any qualification on the way in which the property’s use may benefit them. This is reinforced when regard is had to the earlier part of the clause which concerns the Sisters of Mercy.
[17] Clause 5 gives precedence to the Sisters of Mercy and bequests the property to that organisation, for the exclusive use of their sisters. The same wording is used for the purposes of the gift to the Bishop. However, the wording of the contingency which follows the gift to the sisters is enlightening. It provides that if the Sisters of Mercy no longer require the property or “have a use for it”, it is to be left to the Bishop. The employment of the words “have a use for it” indicate the exclusive use to be made of the property is not limited to any particular use such as occupation. Here, the Sisters had no use for the property and it passed to the Bishop for the exclusive use of the diocese’s canons. There is no reason why the same term — “exclusive use” — should be given any narrower meaning when the term is utilised in the same way in the latter part of the same clause of the will, nor why it ought not encompass the multiple ways in which the property could be used to benefit the canons.
7 There is a general principle that a will is to be read as a whole. See Tanner v New Zealand Guardian Trust Co Ltd [1992] 3 NZLR 74 (CA), Breach, above n 4.
[18] Clause 5.1 of the will expresses Carol’s wish that the property is not to be sold. However, beyond that expressed preference, the terms of the will disclose no limitation on the use to which the property could be put for the benefit of the Sisters of Mercy’s membership or the Bishop’s canons.
Carol’s wishes
[19] Carol’s will provides directions regarding her headstone, the contents of the property, her personal possessions and arrangements for her pet cat. It also provides, in the event the property is not able to be distributed to the Sisters of Mercy or the Bishop, it is to be given to Colin. In relation to these particular directions and dispositions, her will refers to the wishes she recorded and left in an envelope marked “Carol’s Will and Peripheral Matters”. These wishes are not referenced in cl 5, which governs the disposition of the property to the Sisters of Mercy and the Bishop. However, the parties addressed Carol’s separately documented wishes in support of their respective cases.
[20] Carol’s separate wishes comprise three documents which came into Ms Sirisena’s possession after Carol’s death. The documents comprise her wishes as expressed “to my trustees and to Ms Indira, my lawyer”; Carol’s wishes “in relation to [the property]”; and her wishes “to Colin”. They are instructive insofar as they exhibit Carol’s strong desire that the Catholic Church should receive the benefit of the property, that it should not be sold, and that she does not want Colin to receive it. These sentiments are expressed in various parts of the documents recording Carol’s wishes. She recorded the following wishes to the executors and Ms Sirisena:
1. You must do your very best for the property at 238a Harewood Road to go to the Sisters of Mercy or the Catholic Diocese of Christchurch. I do not wish for Colin to have this property. I have many reasons, most of which are known to you all. Note: The property in Timaru … was purchased by Colin from moneys given by myself on behalf of our mother, father and from me. Colin was also previously given deposits for three properties ($49,000) during the time my father & mother were living.
2. I wish the Sisters of Mercy or the Catholic Diocese to get the house because this house belonged to my father Ferdinand Morais and Mother Alice Marie Netto Morais. Especially in the time of my mother’s life the house was a house of Prayer, Peace and Sanctity. I strongly wish for that to continue.
[21] Carol provides some detail in this document as to why she wished to exclude Colin. Further, feelings of antipathy Carol held towards her brother were also expressed to Ms Sirisena and to both executors. Carol expresses the wish that her pet cat and a collection of soft toys and a doll, which were obviously items precious to her, remain with the house if possible. In the event that cannot be arranged, provision is made for the cat’s care and “if Colin can look after [the soft toys and doll], not chucked somewhere, then Colin may have them”, but her preference was to leave them at the property. Carol also requests that a photograph of her mother and father be kept and displayed somewhere in the house “to honour them”. She describes her mother as a “pious, prayerful, devoted Catholic Mother, wife, friend, and a faithful of the church”.
[22]In the document expressing her wishes in relation to the property, she states:
3. The property must be for the use of the Sisters and not to house anyone else in it. The reason I wish this to be honoured is because this house belonged to my father Ferdinand Morais and mother Alice Marie Netto Morais. Especially in the time of my mother’s life the house was a house of Prayer, Peace and Sanctity. I strongly wish for that to continue.
[23] Carol then sets out her wishes regarding the retention of certain items at the property, including pieces of furniture, a piano and organ, various religious items and the soft toys and doll, together with the display of the photograph of her mother and father. She expresses the wish that “the property must not be sold” and for her cat to be taken care of. Finally, Carol directs the Sisters of Mercy, should they be unsure of any of her instructions to talk to her “dear friend and trusted lawyer”, Ms Sirisena. Ms Sirisena’s evidence was very clear that Carol, as a devout Catholic, wanted to benefit the church with her house and she talked extensively about how she could do that. She talked about the Sisters of Mercy and discussed leaving it to the church, but her “emphasis”, according to Ms Sirisena, was always that she did not want Colin to have the property”.
[24] In Carol’s wishes to Colin, she gives permission to him to take some of her personal effects and that, while her preference is to leave the soft toys and doll in the house, he may have them if he thinks he will look after them.
Carol’s testamentary intentions
[25] It is plain that Carol wanted the property to be transmitted to the Catholic Church. Her first preference was for the property to be left to the Sisters of Mercy and, in the absence of their having a use for it, to the Bishop for the benefit of the diocese’s priests. As is also apparent from Carol’s documented wishes, in furtherance of her strong Catholic faith, her desire was for the property to be retained either by the Sisters of Mercy or by the Bishop to be personally utilised by the sisters or the diocese’s canons. However, Carol, who was a lawyer by training and who prepared a draft of her will which, after discussion with Ms Sirisena, formed the basis of its final version, did not incorporate those separately recorded wishes as terms of the will itself, nor were they included as a clear and explicit condition of the gift.
[26] I consider it tolerably clear that, while Carol had given considerable thought to how she would like the property to be used by the Catholic Church after her death in order to benefit the Sisters of Mercy and the priests of the diocese, she did not mandate any particular use of the property in her will as a condition of the bequest on either the Sisters of Mercy or the Bishop. The fact she chose not do so appears to accord with the executors and Ms Sirisena’s understanding of her testamentary intentions, that her overarching concern and heartfelt preference was for the asset to benefit either the Sisters of Mercy or the local diocese and their sisters and priests.
[27] The only wish that Carol expressed in her will was that the property not be sold. The property has not been sold. This statement at cl 5.1 of the will is an expression of Carol’s strong wish but it does not constitute either a condition of the bequest or a binding obligation on the executors or the recipients of the gift. If anything, it is indicative of Carol’s understanding that sale is an option available to the nominated recipient, albeit one that she strongly wishes not be resorted to in light of the wishes she had separately documented.
[28] Clause 6 of the will provides that if the property is not able to be distributed in accordance with “my wishes”, the house is to be given to Colin. Unlike in other parts of the will, the reference to “wishes” is not linked to those contained in the envelope marked “Carol’s Will and Peripheral Matters” and, when read in context, must be
interpreted as the wishes expressed in the preceding cl 5 that also concern the property. I consider cl 6 would only be triggered if both the Sisters of Mercy and the Bishop concluded they had no use for the property and that it could not be used to benefit their respective sisters or canons.
No condition precedent
[29] Colin’s argument in support of his application for declaratory relief relies upon the bequest of the property to the Bishop being a contingent gift. Clearly, whatever obligations may arise from the Bishop’s acceptance of the gift and the use of the property, they did not constitute a condition precedent. Such a condition requires some prerequisite step being completed or state of affairs achieved before a gift will vest, such as the requirement that a certain age is attained before a gift takes effect.8 Here, as was submitted on behalf of the Bishop there is no prior condition relating to the property or its use that is required to be discharged before it can be transferred to the diocese’s legal ownership. The executors, upon receiving the diocese’s advice of its acceptance of the gift and of its intention to “uphold the intent of the will”, were obliged to transmit the property to the Bishop in accordance with the terms of cl 5.
Was the gift disclaimed by the Bishop’s use of the property?
[30] Colin’s argument therefore devolves to a submission that the Bishop’s subsequent use of the property amounts to a disclamation of the gift which should result in it being held for his benefit. Once a beneficiary has accepted a gift by taking a benefit conferred by it, he or she may no longer disclaim it until he or she is at liberty to disclaim. If a gift is made on condition, the legatee can take the gift and, subsequently upon finding the condition too onerous, abandon the gift and be free of the condition.9
[31] If any issue arises as to the Bishop’s use of the property, it may be as to whether it may arguably amount to a condition subsequent that the property be used for canons
8 See Breach, above n 4, at 481.
9 Re Hodge [1940] Ch 260 cited in Breach, above n 4, at 469.
exclusively, although I make no finding to that effect. In Bennett v Bennett, Panckhurst J found:10
… a condition subsequent is one which after the vesting of the gift puts an end to the gift (for example where a sum is payable from time to time subject to continued widowhood).
[32] It may be that the gift to the Sisters of Mercy was subject to a condition subsequent insofar as it was dependent upon them having a use for the property. However, it is not apparent that, once the property was transmitted to the Bishop, its retention was subject to the existence of any ongoing state of affairs or would be extinguished by any particular event. From my construction of the will, I have already found that Carol did not mandate any particular use of the property, nor do I consider she intended to make the Bishop’s continued ownership conditional on its occupation by canons. In any event, the evidence shows the Bishop has sought to adhere to Carol’s stated wishes to use the property to benefit its priests in accordance with her testamentary intention.
[33] The uncontested evidence was that the Diocese’s initial intention and preference upon obtaining title to the property was to use it to house one of its priests, notwithstanding their view the property came with clear title. A number of attempts were made to do so but, for various reasons, a series of priests to whom the property was offered were unable to take up the opportunity. The house was also offered to a staff member of the diocese on a temporary basis while waiting for a new house to be built but this was declined. It was against those circumstances, with the property having remained empty for some months and the Bishop incurring the expense of rates, insurance, security monitoring, repairs and garden maintenance, that it was offered to a young couple with two small children looking for rental accommodation whilst their new home was being built.
[34] Mr Terence Foote, the diocese’s property manager, gave evidence that the letting of the property to this family generated a rental of $400 per week. These funds were applied to the Bishop’s general account which is used in part to fund housing for retired priests. Because the rental was being used for such a purpose, it was considered
10 Bennett v Bennett HC Christchurch CP99/00, 10 April 2001.
the property was being used for the benefit of the diocese’s priests and Carol’s wishes were being honoured. Some $20,600 was received during the tenancy. These funds have been used to support a range of activities, including hospital, prison and pastoral chaplaincy, the education and “formation” of diocesan priests, and the payment of rentals for retired priests of the diocese.
[35] Mr Foote’s evidence was that it had been hoped, at the conclusion of the fixed term lease of the property, it would be made available as a residence for a priest. However, in the absence of any priests needing to be accommodated at the time it became vacant, this has not proved possible. The property is currently being used by members of what is described as a “Mission Team” that comprise full time volunteers who commit to 11 months of mission work while training and living in the community together. When this comes to an end, Mr Foote advised that the possible use of the property for the purpose of housing a priest will again be reviewed. Mr Foote confirmed the Bishop remains committed to giving effect to Carol’s wishes and has taken no steps to sell or dispose of the property.
[36] It follows that the Bishop has not disclaimed the gift, nor has the use to which the property been put conflicted with Carol’s testamentary intention to benefit the diocese’s priests. Its use has in various ways furthered their pastoral work in the community and provided them with support. This, in turn, is no doubt to the overall benefit of the Catholic Church in Christchurch, to which its priests are dedicated and seek to serve and of which they are a part, as is the Bishop himself, to whom the property was directed to be left and who, of course, is himself a priest or canon.
Conclusion
[37] In summary, I do not consider cl 5 of Carol’s will imposes a condition that the property must be exclusively occupied by the diocese’s priests, that was required to be met in order for the property to be transmitted to the Bishop or retained by him. The term “for the exclusive use of their Canons” did not limit the ways in which the property could be used for their benefit. I find the Bishop has endeavoured to follow the wishes of Carol after the property was transmitted to him when the gift was declined by the Sisters of Mercy and that his efforts to do so are ongoing. There was
nothing invalid in the executors’ decision to transmit the property to the Bishop upon receiving his advice that the property would be accepted and of his commitment to uphold the intent of the will.
[38] I do not consider the use to which the Bishop has put the property, including it being let on a temporary basis for a finite period when it was otherwise unable to be utilised, to generate funds which have contributed to the support provided to its priests (both active and retired) and their activities within the diocese, breached the terms of the bequest. Nor do I consider the use to which the property has been put can be interpreted as an intention to disclaim the gift.
[39]Colin’s application for declaratory judgment must therefore fail.
Abuse of process, estoppel and inequity
[40] For completeness, I mention that both the executors and the Bishop raised alternative defences to Colin’s claim, arguing variously that it amounted to an abuse of process and that he should be estopped from pursuing a claim against the diocese in relation to the property. It was submitted that, if a claim contesting the will was to have been brought, it should have been made some years ago, at the time Colin brought proceedings under the Law Reform (Testamentary Promises) Act in the Family Court. When that litigation concluded and an appeal was abandoned, no notice was provided of any further claim in respect of the property, and the Bishop accepted its transfer from the executors. It was submitted that, by so doing, he has incurred costs and that it would be unjust to order any relief against the Bishop in those circumstances.
[41] A similar argument was made in reliance on s 51 of the Administration Act 1969, which provides that a court may find it inequitable to grant relief when the person from whom such relief is sought, is the recipient of a distribution of any assets forming part of an estate of a deceased person in good faith, and has altered their position in the reasonably held belief that the distribution was properly made and would not be set aside.
[42]For their part, the executors also referred to the rule in Henderson v Henderson
which provides, where a matter is the subject of adjudication by a court of competent
jurisdiction, the parties to that litigation are required to bring forward their whole case as part of the subject in contest.11 It is said the plea of res judicata applies not only in respect of points raised for the Court’s determination and required by the parties to provide a judgment, but also to every point “which properly belonged to the subject of the litigation, and which the parties, exercising reasonable diligence may have brought forward at the time”. Essentially, that claims cannot be undertaken by instalment. It was argued the present claim could have been advanced in 2018, when Colin brought his claim of there having been a testamentary promise. Carol’s testamentary intentions were closely examined in the course of the Family Court proceeding and it was submitted that, if there was to be any challenge to the interpretation of the will, it should have been raised at that time.
[43] In the absence of evidence that the Bishop has altered his position to his detriment on apparent reliance on the litigation having come to an end, I doubt whether the claim of estoppel is tenably available. Nor is it readily apparent that he has altered his position, at least to his prejudice by having accepted the gift in order to be able to rely on s 51 of the Administration Act. I accept there are some grounds to conclude the present claim represents something of a second bite of the cherry given the delay in bringing this proceeding. However, that said, it appears the present claim for declaratory relief has been sought in response to the Bishop letting the property to a family with no obvious connection with the diocese or the functions of its priests. I also note that Judge Lindsay in the Family Court expressly declined “to delve into the interpretation of the will”.12
[44] Having regard to my findings regarding the merits of the proceeding, it is not necessary for me to come to any concluded view regarding these alternative defences put forward by the executors which, as a result, are moot.
[45] Finally, the Diocese pleaded indefeasibility of title as an affirmative defence to Colin’s claim. This was largely raised in response to his pleading that the executors ought to have placed a caveat on the title of the property for his benefit. However, that
11 Henderson v Henderson (1843) 67 ER 313 (Ch), as cited by the Court of Appeal in Faloon v Planning Tribunal at Wellington [2020] NZCA 170 at [2].
12 Morais v Venis, above n 1, at [15].
allegation was not pursued in Colin’s amended pleading, and any such relief to that effect was not ultimately sought. For completeness, I note that the property was transferred to the diocese free from any conditions. The dismissal of Colin’s claim removes any argument he has any contingent interest in the property.
Result
[46]The claim for declaratory judgment is dismissed.
Costs
[47] Colin is legally aided. Given this fact, the question of costs appears redundant. However, if the parties wish to be heard on the issue, they may file and exchange memoranda (maximum three pages).
Solicitors:
Everist Gilchrist Lawyers, Ashburton Pier Law Ltd, Christchurch
Cavell Leitch, Christchurch
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