Scott v King - [2019] NZHC 1538

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-604045

[2019] NZHC 1538

IN THE ESTATE
Of DONALD ALEXANDER SCOTT, of

Auckland, Company Director Deceased

BETWEEN

JEANETTE RUTH SCOTT

Applicant

AND

JODY MICHELLE ANNIE KING

Caveator

Hearing: 26 June 2019

Counsel:

R M Lewis for Applicant J Zwi for Caveator

Judgment:

4 July 2019

JUDGMENT OF WHATA J

This judgment was delivered by me on 4 July 2019 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Lewis Callanan, Auckland
AWS Legal, Invercargill

SCOTT v KING [2019] NZHC 1538 [4 July 2019]

[1] Jeanette Ruth Scott (Mrs Scott) applies for an order that the grant of letters of administration nisi in the estate of her late husband, Donald Alexander Scott be made absolute. There is no doubt that Mrs Scott, as the deceased’s spouse is prima facie entitled to seek letters of administration in the absence of a will by the deceased. Problematically, in this case, a “Will” was executed on 22 June 2018. Two days after execution, an invitation to the wedding of Mr and Mrs Scott was sent out. This brings into frame s 18 of the Wills Act 2007 which says:

18 Effect on will of will-maker marrying or entering civil union

(1)A will is revoked if the will-maker marries or enters a civil union.

(2)Subsection (1) is—

(a)overridden by section 10; and

(b)overridden by subsection (3); and

(c)qualified by subsection (4).

(3)Subsection (1) does not apply if—

(a)either—

(i)the will expressly says that it is made in contemplation of a particular marriage or civil union; or

(ii)the will does not expressly say that it is made in contemplation of a particular marriage or civil union but the circumstances existing when it was made show clearly that it was made in contemplation of a particular marriage or civil union; and

(b)the marriage or civil union that occurs is the contemplated one.

(4)The exercise by will of a power of appointment is not revoked by the will-maker marrying or entering a civil union if the property appointed would not go to the will-maker’s personal representative if the will-maker did not exercise the power.

[2] Mrs Jody Michelle Annie King (Mrs King), the deceased’s biological daughter (but adopted and therefore not entitled to benefit on intestacy), has lodged a caveat in respect of the deceased’s estate. She says that subs 18(3) applies. She argues that the will which is, prima facie, revoked by subs 18(1), was made in contemplation of a particular marriage and therefore is not revoked.

[3] The issue before me is whether the Will is not revoked by the operation of s 18(1) because it was made in contemplation of marriage. If I am satisfied that there is a reasonable argument to that effect, then letters of administration should be subject to a solemn form process.

Background facts

[4] The background facts are fully set out in the affidavit…

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 Scott v King

Details

AGLC: Scott v King [2019] NZHC 1538
Case: [2019] NZHC 1538
Decision Date: 4 July 2019

CaseChat Overview and Summary

Jeanette Scott applied for an order that the grant of letters of administration nisi in the estate of her late husband, Donald Scott, be made absolute. A caveat was lodged by Jody King, the deceased's daughter, in respect of the deceased's estate. The caveator argued that the will executed by the deceased, which was prima facie revoked by the deceased's marriage to Mrs Scott, was made in contemplation of marriage. The issue before the court was whether the will was made in contemplation of marriage and whether it was revoked. The court considered the evidence and found that there was a reasonably arguable case that the will was made in contemplation of marriage. The court ordered that the application for administration be made in solemn form.

The court considered the evidence and found that the caveator had a reasonably arguable case that the will executed on 22 June 2018 was in contemplation of marriage. The court found that the text message sent by Mrs Scott on 24 June 2018 strongly suggested that at about the time the Will was executed, Mr and Mrs Scott had marriage in mind. The court also found that the marriage in fact occurred reasonably shortly thereafter, on 4 August 2018. The court considered the approach adopted by Katz J in Jurisich v Harris and found that if a caveator does raise sufficient grounds to establish that a full inquiry is appropriate, the usual course will be an order that the application for letters of administration be made in solemn form. The court found that the available record contained none of the contemporaneous material that might shed light on whether Mr Scott, at the time he executed his Will, had marriage in contemplation. The court found that the production of the text message from Mrs Scott raised sufficient credibility issues insofar as she claims that marriage had not been in contemplation at about the time of the execution of the Will. It was a matter requiring proper testing.

The court made the following orders: (a) the order nisi was discharged; (b) the application for administration was to proceed in solemn form; (c) leave was granted to any of the parties, if assistance was required, for the purposes of interim administration of the estate; and (d) if costs could not be agreed between counsel, then leave was reserved to file memoranda within five working days.

Orders