Rule v Rule - [2016] NZHC 3160

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-005837 [2016] NZHC 3160

BETWEEN
DOUGLAS IAN RULE AND

ELIZABETH JANE BELCHER Plaintiffs

AND

LESLEY LOUISE RULE AND ANTHONY CHARLES ON BEHALF OF THE ESTATE OF MURIEL GWENDOLINE RULE

Defendants

Hearing: 19-23 September and 10 October 2016

Counsel:

A C MacMillan for Plaintiffs
W Galvin for Lesley Rule
J D Turner for the estate

Judgment:

20 December 2016

JUDGMENT OF WHATA J

This judgment was delivered by me on 20 December 2016 at 1.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors: B Knowles, North Shore City
McVeagh Fleming, Albany

RULE AND BELCHER v RULE AND CHARLES [2016] NZHC 3160 [20 December 2016]

[1] Muriel Gwendoline Rule passed away in August 2011. Her will leaves the bulk of her estate to her daughter, Louise. There is no provision for Muriel’s other children, Douglas Rule (Doug) and Elizabeth Jane Belcher (Jane), unless Louise pre- deceased her.1 Doug and Jane challenge the will on the basis that:

(a) Muriel lacked testamentary capacity at the time she executed her will, due to a stroke;

(b) Muriel was unduly influenced in the making of her will by Louise;

(c) Muriel breached her moral duty pursuant to s 4 of the Family Protection Act 1955, to make provision for the maintenance and support of the plaintiffs.

[2] At the hearing the executors of the will applied to vary the will to accord with Muriel’s intentions, namely that Louise remain in Muriel’s principal residence until she dies, with Muriel’s share in that house passing to Doug and Jane, or if they have died, to their children. This was not opposed. I will proceed on the basis of the will as varied.

Background

[3] Doug, Jane and Louise were loving children to their mother, Muriel.

[4] On 19 July 2007, Muriel executed a Will (the July Will) in the presence of her lawyer, Mr Tony Coupe; a nurse, Ms Adrianne Wilson; and a neighbour, Mr Ross Armstrong. They did not notice anything wrong with her. Muriel had, in fact, only recently been released from hospital eight days earlier, having suffered a probable neurovascular event, most likely a lacunar infarct. For ease of reference, I will refer to this as the stroke event.

[5] The July Will leaves Muriel’s half share of her principal residence at 3 Rarere

Road, Brown Bay (the family home) to Louise, who had already inherited the other

1 Louise accepts that the July Will was meant to only confer a life interest in Muriel’s half share of
a residential property, being the main asset of her estate.

half share from her father. Doug and Jane were shocked to learn about the July Will. They feel abandoned. They believe Muriel was not competent when she executed the July Will and/or that Louise engineered the outcome. They also believe the previous will, which had been executed only two months earlier, in May 2007 (the May Will), is the only…

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 Rule v Rule

Details

AGLC: Rule v Rule [2016] NZHC 3160
Case: [2016] NZHC 3160
Decision Date: 20 December 2016

CaseChat Overview and Summary

In Rule and Belcher v Rule and Charles, Whata J considered a challenge to the validity of a will. The plaintiffs, Douglas Rule and Elizabeth Jane Belcher, argued that their mother, Muriel Gwendoline Rule, lacked testamentary capacity and was unduly influenced by their sister, Lesley Louise Rule, when she executed her will in July 2007. The plaintiffs also argued that Muriel breached her moral duty under the Family Protection Act 1955 to make provision for the maintenance and support of the plaintiffs. The defendants were Lesley Rule and Anthony Charles, the executor of Muriel's estate. The court found that Muriel had testamentary capacity and was not unduly influenced when she executed her will, but that the will breached her moral duty to the plaintiffs. The court ordered that Muriel's half share in the family home be vested in the plaintiffs when their sister reaches the age of 67, and reserved leave for the parties to file submissions on the appropriate relief for the breach of moral duty. The court also directed that if agreement could not be reached on costs, submissions should be filed by the plaintiffs, with reply submissions by the defendants to be filed three working days thereafter.

Orders