Shine v Green - [2018] NZHC 1382

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2017-407-000184

[2018] NZHC 1382

BETWEEN
NICOLA MEGAN SHINE as executor of the estate of Ms Jane Fox

Plaintiff

AND

JENNIFER LILLIAN GREEN and MEGAN

FRANCES SHINE as the executors of the estate of Sylvia Lily Fox

First Defendants

DIANA ELIZABETH FOX and WILLIAM

HUGH JONES as executors of the estate of Graham Glyn Fox

Second Defendants

SHANE GOODALL McLAUGHLIN

Third Defendant

Hearing: 23 April 2018 (Heard in Hamilton)

Appearances:

Tim Conder for the Plaintiff

First Defendants abiding the decision of the Court Second Defendants abiding the decision of the Court David O’Neill for the Third Defendant

Judgment:

12 June 2018

JUDGMENT OF MOORE J

This judgment was delivered by me on 12 June 2018 at 2:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

SHINE v GREEN & ORS [2018] NZHC 1382

Introduction

[1] Paula Fox died four days after she executed her last will. She left the residue, being the bulk of her estate, to her only son Jordan McLaughlin, to be held on trust for his “wellbeing, living, clothing, medical expenses as he requires”. He survived his mother, but only by about three months. He died intestate aged 25.

[2] A dispute has arisen as to the proper distribution of Ms Fox’s estate. The plaintiff, the sole surviving executor, is Ms Fox’s sister, Nicola Shine. Ms Shine seeks to distribute the residue to the executors of the estates of Sylvia and Graham Fox, Ms Fox’s parents. However, the father of Jordan claims the residue is properly part of his son’s estate. He is the third defendant, and the executor of Jordan’s estate.

[3] Ms Shine says Ms Fox created a valid trust in favour of Jordan. However, upon Jordan’s death, Ms Shine claims that trust failed and the residue resulted back to Ms Fox’s estate to be distributed on an intestacy. Mr McLaughlin disputes this, claiming he is entitled to the inheritance through his son.

Background

[4]The background facts may be stated quite briefly.

[5] Jordan was born on 14 July 1991, to Ms Fox and Mr McLaughlin. They later separated.

[6] On 22 June 2016 Ms Fox executed her last will. It seems likely her will was made in anticipation of her imminent death, because she died four days later, on 26 June 2016. She was aged 49. She was survived by Jordan and both her parents, Graham and Sylvia.

[7] The main assets of her estate were her car and an 87 per cent share in a house which she owned with her mother.

[8] Ms Fox’s will was made using a “will kit” template. It consists of two parts. The first is a pro forma, pre-printed will template. The blank spaces are filled out by

Ms Fox in long hand. These include the usual formalities such as her name, address and occupation and the names and occupations of those she appointed…

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 Shine v Green

Details

AGLC: Shine v Green [2018] NZHC 1382
Case: [2018] NZHC 1382
Decision Date: 12 June 2018

CaseChat Overview and Summary

The case of Shine v Green and Others revolves around the interpretation of the will of Paula Fox, who passed away shortly after executing her last will. The dispute concerns the proper distribution of Ms Fox’s estate, with Nicola Shine, the executor of Ms Fox’s will, seeking to distribute the residue to the executors of the estates of Sylvia and Graham Fox, Ms Fox’s parents. However, William Hugh Jones, the executor of Jordan McLaughlin's estate, claims the residue is properly part of his son’s estate. The central issue in this case is whether Ms Fox’s will created a valid trust in favour of her son, Jordan, and if upon his death, the trust failed, resulting in the residue reverting back to the estate to be distributed according to the rules of intestacy.

Moore J concluded that Ms Fox did indeed intend to create a trust in favour of Jordan, as expressed in the letter of wishes attached to her will. However, the gift was absolute, and upon the failure of the trust due to Jordan’s death, the residue of Ms Fox’s estate vested absolutely in Jordan. Therefore, at the time of his death, it was part of his estate, and William Hugh Jones, as the executor of Jordan’s estate, is entitled to it.

In the alternative, the Court found that if the residue was not part of Jordan’s estate, it would still fall to be distributed as part of Ms Fox’s estate under the intestacy rules in the Administration Act 1969. The Court held that Jordan had an absolutely vested interest in the residue held on statutory trust following Ms Fox’s death, and therefore, at his death, the residue was part of his estate and falls to be distributed as such.

Orders