Stanwick v Bostock - [2024] NZCA 253

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA611/2023
[2024] NZCA 253

BETWEEN	TIMOTHY EARL SWANWICK Appellant
AND	EDWARD ANTHONY BOSTOCK AS SOLE EXECUTOR AND TRUSTEE OF THE ESTATE OF KENNETH EARL SWANWICK (DECEASED) First Respondent
AND	EDWARD ANTHONY BOSTOCK AS SOLE EXECUTOR AND TRUSTEE OF THE ESTATE OF BETTY REID SWANWICK (DECEASED) Second Respondent

Hearing:	20 May 2024
Court:	Collins, Churchman and Osborne JJ
Counsel:	S J Webster for Plaintiff A R H G Fanning for First and Second Respondents N T Gray for Interested Parties
Judgment:	21 June 2024 at 10 am

JUDGMENT OF THE COURT

A The appellant’s application for leave to amend his grounds of appeal is declined.
BThe appeal is dismissed.
C The appellant must pay to respondents and interested parties respectively costs for a standard appeal on a band A basis and usual disbursements.

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REASONS OF THE COURT

(Given by Osborne J)

Introduction

The appellant, Timothy Swanwick (Tim),[1] wished to pursue a testamentary promises claim against the estate of his late father, Kenneth Swanwick (Mr Swanwick), and late mother, Betty Swanwick (Mrs Swanwick).
[1]In this judgment, first names are used for some family members to avoid confusion. This is consistent with the approach taken in the judgment under appeal: Swanwick v Bostock [2023] NZHC 1600 [High Court judgment].
To pursue the claim against Mr Swanwick’s estate, Tim required an order pursuant to s 6 of the Law Reform (Testamentary Promises) Act 1949 (the Act), because he had not commenced a proceeding under the Act within 12 months of the grant of probate in relation to Mr Swanwick’s last will. Tim’s application to commence his proceeding out of time was dismissed by Associate Judge Johnston (the Judgment).[2]
[2]High Court judgment, above n 1, at [61].
Tim appeals the Judgment.

General background

Until Mr Swanwick’s death

Mr and Mrs Swanwick lived at Taradale, near Napier.
There are four surviving children of their marriage, namely Tim and his three sisters, Caryl, Angela and Judith. Tim’s sisters are interested parties in this proceeding.
Mr and Mrs Swanwick owned, in half shares, several properties, including a 227‑hectare farm at Maraetotara (Farm Property). The Farm Property comprised two parcels of land purchased by Mr and Mrs Swanwick in 1992 and 1999. Mr and Mrs Swanwick farmed in (an undocumented) partnership.
Tim asserts that Mr Swanwick told him if he worked on and developed the Farm Property, it “would be his” when Mr and Mrs Swanwick died.
Mr Swanwick died on 28 August 2008. Probate in relation to his will was granted on 26 September 2008.

Mr Swanwick’s will

By his last will dated 20 September 2006, Mr Swanwick left his half share of the Farm Property in equal shares to his four children. Mr Swanwick appointed Mrs Swanwick and their lawyer, Malcolm Walker, as his executors and trustees. Mrs Swanwick was left a life interest in the couple’s house property.
Mr Swanwick, by his will, instructed his trustees, after payment of his debts…

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 Stanwick v Bostock

Details

AGLC: Stanwick v Bostock [2024] NZCA 253
Case: [2024] NZCA 253
Decision Date: 21 June 2024 at 10 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Timothy Swanwick, the appellant, appealed against the High Court’s dismissal of his application for leave to commence proceedings out of time in relation to a testamentary promise claim against the estate of his late father, Kenneth Swanwick. The appeal was dismissed. The appellant was required to pay costs for a standard appeal on a band A basis and usual disbursements to the respondents and interested parties.

The appellant claimed that his father had promised him that if he worked on and developed a farm property, it “would be his” when his parents died. The appellant did work on the farm property and continued to do so after his father’s death. However, the appellant was not given a copy of his father’s will until his mother died. Upon learning of the will’s contents, the appellant commenced a testamentary promise claim against his father’s estate. The appellant was required to obtain leave under s 6 of the Law Reform (Testamentary Promises) Act 1949 to commence the proceeding out of time. The High Court dismissed the appellant’s application. The appellant appealed the dismissal.

The appellant submitted that there remained material steps of administration to be taken in relation to his father’s estate. The appellant submitted that it was unclear on what basis the farming partnership had continued after his father’s death. The appellant submitted that the partnership required formal dissolution in accordance with the Partnership Law Act 2019. The appellant submitted that the executors had not fully performed their duties in relation to the residue of the estate and were holding the assets of the estate as trustees only. The Court of Appeal found that the executors had effectively transferred their interests in the half shares of the farming business to themselves as trustees. The Court of Appeal found there was nothing in the fact that the residuary estate was held for beneficiaries contingent upon them forming a GST registered entity. The Court of Appeal found the fact the properties remained registered in the names of the original personal representatives and had not been transferred into the name of the appellant as their successor was irrelevant to the question of whether the estate had been distributed.

The Court of Appeal found that the executors had effectively transferred their interests in the half shares of the farming business to themselves as trustees. The Court of Appeal found there was nothing in the fact that the residuary estate was held for beneficiaries contingent upon them forming a GST registered entity. The Court of Appeal found the fact the properties remained registered in the names of the original personal representatives and had not been transferred into the name of the appellant as their successor was irrelevant to the question of whether the estate had been distributed. The Court of Appeal found the appellant’s appeal grounds and proposed supplementary appeal ground in relation to the exercise of the discretion under s 6 had been rendered moot. The Court of Appeal declined the appellant’s application for leave to amend his grounds of appeal. The appeal was dismissed. The appellant was required to pay costs for a standard appeal on a band A basis and usual disbursements to the respondents and interested parties.

Orders