Mumby v Mumby - [2017] NZCA 394

IN THE COURT OF APPEAL OF NEW ZEALAND

CA319/2016
[2017] NZCA 394

BETWEEN

NEIL ROBERT MUMBY AND CHERIE KAREN CARNEGIE
Appellants

AND

NEIL ROBERT MUMBY AND BRETT JAMES MUMBY
First Respondents

BRETT JAMES MUMBY
Second Respondent

GLENDA DALE MUMBY
Third Respondent

Hearing:	28 June 2017
Court:	Brown, Dobson and Brewer JJ
Counsel:	D A Wood for Appellants P J Magee for Second Respondent N C King for Third Respondent
Judgment:	6 September 2017 at 12.30 pm

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe appellants must pay the second and third respondents costs for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brewer J)

Introduction

Mr Cecil Mumby and Mrs Glennys Mumby farmed at Taipa for 40 years. When Mr Mumby died in January 2011 he left his share of the farm to Mrs Mumby. When she died the following year the farm went to her son, Brett (the second respondent), pursuant to her will of 12 August 2011 (the 2011 will).
Two of Mrs Mumby’s three other children, Neil and Cherie (the appellants), challenged the validity of the 2011 will. They said that an earlier will, signed on 17 February 2010 (the 2010 will), should be recognised as Mrs Mumby’s valid will.

The two wills

The 2010 will was in identical terms to Mr Mumby’s will, both of which were executed on the same day. The 2010 will did not leave the farm to Brett. It just gave him first option to buy it at current market value, discounted by 50 per cent. If Brett exercised this option to purchase, the residue would be divided between Neil, Cherie and their sister, Glenda (the third respondent). If he did not, all four children would share in the residue equally. Neil was also to receive a property situated on the Awanui Straight at Kaitaia.
After Mr Mumby’s death, Mrs Mumby executed a new will in August 2011. As noted, the 2011 will gave the farm, along with the farm stock and machinery, to Brett outright. The residue was to be left to Cherie and Glenda in equal shares. Neil was still to receive the Awanui Straight property.
Therefore, the 2010 will provided for a larger residuary estate than the 2011 will. It also gave Neil a share of the residue. Both Neil and Cherie would get more from Mrs Mumby’s estate if the 2010 will were operative.

The High Court judgment

The challenge by Neil and Cherie was determined by Courtney J in the High Court.[1] There were three grounds of challenge:
(a)Mrs Mumby did not know and approve the contents of the 2011 will.
(b)The 2011 will was affected by the undue influence of Brett.
(c)Mrs Mumby breached her moral duty to provide for her other children by leaving the farm entirely to Brett.[2]
[1]Mumby v Mumby [2016] NZHC 1284.
[2]A claim for relief under the Family Protection Act 1955.
Courtney J held:[3]
(a)Mrs Mumby knew and…

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 Mumby v Mumby

Details

AGLC: Mumby v Mumby [2017] NZCA 394
Case: [2017] NZCA 394
Decision Date: 6 September 2017 at 12.30 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal in the matter of Mumby v Mumby, which involved a challenge to the validity of a will. Neil Robert Mumby and Cherie Karen Carnegie, the appellants, sought to invalidate a will executed by Mrs Glennys Mumby, their mother, on 12 August 2011, arguing that an earlier will dated 17 February 2010 should be recognised as her valid will instead. The appeal contested the High Court's decision that Mrs Mumby knew and approved the contents of the 2011 will.

The legal issues centred on the validity of Mrs Mumby's 2011 will. The appellants argued that despite her knowledge of the will's contents and the absence of undue influence, the will was invalid because Mrs Mumby did not approve it in the sense of being pleased with its effect. They contended that she felt pressured into making the changes and did not genuinely approve of the will's provisions.

The Court of Appeal, after examining the evidence, found that Mrs Mumby understood the terms and the effect of the changes she was making to her will. The Court held that for a will to be valid, it must express the genuine testamentary intentions of the will maker. While the appellants argued that their mother's feelings of ambivalence or reluctance invalidated the will, the Court determined that such feelings, in the absence of undue influence, did not render the will invalid. The appeal was dismissed, and the appellants were ordered to pay costs to the respondents.

In conclusion, the Court of Appeal upheld the High Court's decision that Mrs Mumby's 2011 will was valid and should be recognised as her testamentary document. The appellants' challenge to the will's validity was rejected, and they were ordered to pay costs for the appeal.

Orders