Stokes v Stokes

[2021] NZHC 2254

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-000227

[2021] NZHC 2254

UNDER

Part 27 of the High Court Rules 2016

IN THE MATTER

of an application for solemn probate of the Will of William John Stokes of 9

October 2006

BETWEEN

GREGORY DAVID STOKES and BEVAN

JAMES STONE as executors and trustees of the Will of William John Stokes
Plaintiffs

AND

GREGORY DAVID STOKES, ANDREW MARK STOKES, ERROL PETER STOKES, ROBERT HAROLD STOKES, DAVID JOHN STOKES and ZEKE SINCLAIR STOKES

First Defendants

AND

PETER STOKES, NOEL STOKES, BRYAN STOKES, JASON STOKES and PAUL STOKES

Second Defendants

Hearing:	Determined on the papers
Judgment:	30 August 2021

JUDGMENT OF GENDALL J

STOKES V STOKES [2021] NZHC 2254 [30 August 2021]

Introduction

[1]    William John Stokes (Bill) died leaving a Will dated 9 October 2006 (the 2006 Will).

[2]    The 2006 Will was prepared by Bevan James Stone (Mr Stone), a Christchurch solicitor.

[3]    Bill had a previous Will (the 1987 Will) in which he appointed his brother, David Stokes (David), as sole executor and left all his property to his brother David and if David predeceased him, to David’s children. If a child of David’s predeceased Bill, then the children of that child would take their parent’s share.

[4]    Bill was apparently aware Mr Stone knew some of David’s children and that they were Bill’s nephews.

[5]    David died in 2006. As a result, Bill replaced the 1987 Will with the 2006 Will. In the 2006 Will, David’s wife, Christina, along with David’s son, Gregory David Stokes (Gregory), and Mr Stone are named as executors. Christina passed away prior to Bill’s death and hence only Gregory and Mr Stone are executors under the 2006 Will and the plaintiffs in this proceeding.

[6]    In the 2006 Will, Bill left his residual estate to “my nephews” or if any of them were to predecease him then that nephew’s child or children would receive the parent’s share. The expression “my nephews” was used rather than the expression “the children of my brother David” Bill had used in the 1987 Will.

[7]    The first defendants in this proceeding are largely David’s children. The exceptions are the fifth and sixth named first defendants, David John Stokes and Zeke Sinclair Stokes, who are the children of David’s son, Stephen Stokes (Stephen), who predeceased Bill having died in 2001.

[8]    The second defendants are the children of another of Bill’s brothers, Richard Stokes (Richard).

[9]    The first defendants say that when Bill, at para 3(b) of the 2006 Will, used the expression “my nephews” it was a reference to the first defendants only and not to the children of Bill’s brother, Richard.

[10]   The starting position is that there is no dispute the 2006 Will is Bill’s last valid Will. The issue is to who did Bill mean when he referred to “my nephews”.

[11]   The plaintiffs seek an order granting them Probate of the 2006 Will in solemn form and directions as to the proper interpretation of “nephews” in the 2006 Will, including whether or not a correction is necessary to the Will under s 31 of the Wills Act 2007 (the Act).

[12]   The first defendants in their statement of defence sought an order under s 31 or s 32 of the Act. Section 31 of the Act provides:

31       Correction

(1)This section applies when the High Court is satisfied that a will does not carry out the will-maker’s intentions because it—

(a)contains a clerical error; or

(b)does not give effect to the will-maker’s instructions.

(2)The court may make an order correcting the will to carry out the will- maker’s intentions.

[13]   The first defendants say the 2006 Will did not carry out Bill’s intentions because it did not give effect to his intentions that his residue go only to the first defendants.

[14]   In the alternative, the first defendants seek an order under s 32 of the Act. Section 32 of the Act provides:

32       External evidence

(1)This section applies when words used in a will make the will, or part of it,—

(a)meaningless; or

(b)ambiguous on its face; or

(c)uncertain on its face; or

(d)ambiguous in the light of the surrounding circumstances; or

(e)uncertain in the light of the surrounding circumstances.

(2)The High Court may use external evidence to interpret the words in the will that make the will or part meaningless, ambiguous, or uncertain.

(3)External evidence includes evidence of the will-maker’s testamentary intentions.

(4)The court may not use the will-maker’s testamentary intentions as surrounding circumstances under subsection (1)(d) or (e).

[15]   The first defendants contend that the term “nephews” in para 3(b) of the 2006 Will is ambiguous in light of the surrounding circumstances as again they say, Bill intended his residue to go to the first defendants and not to the second defendants.

[16]   The proceeding was initially opposed by the second defendants, their statement of defence essentially putting the plaintiffs to proof.

[17]   With the first defendants filing evidence in support of their position that “nephews” within the 2006 Will was intended by Bill to mean only David’s sons, the second defendants have now discontinued their defence of the proceeding with no issue as to costs. The statement of defence was filed on behalf of all the second defendants save for Mr Paul Stokes who was served with the proceedings. Counsel for the first defendants advises that Mr Paul Stokes has confirmed he does not intend to take any steps to oppose the orders sought by the first defendants.

[18]   Accordingly, no party now opposes the interpretation sought by the first defendants. The plaintiffs abide the Court’s view as to the meaning of “nephews” in the 2006 Will.

[19]   While the application is no longer opposed, the Court must be satisfied that the interpretation proposed by the first defendants is supported by the evidence.

The evidence

[20]   At its most basic, the first defendants say that Bill was estranged from Richard and that Bill did not have contact with Richard’s sons, the second defendants. The first defendants say that Bill advised them on occasions after 2006 that he had left his entire estate to them.

Evidence of Mr Stone

[21]   Mr Stone, Bill’s longstanding lawyer, explains that when he took instructions for the 2006 Will he was unaware that Bill had nephews other than the first defendants. Mr Stone had some connection with the first defendants, having acted for Stephen (who died in 2001) and Andrew. Mr Stone understands that Bill was referred to him by one of David’s children.

[22]   It was because of Mr Stone’s connection with David’s children that Mr Stone says he understood Bill’s reference to nephews was to the first defendants. Mr Stone says Bill never mentioned to him at the time of making the 2006 Will that Bill had another brother or five other nephews.

[23]   Mr Stone says he recalls asking Bill who his beneficiaries would be and at the same time Bill said as waving his handicapped arm “my nephews”. Mr Stone says he recalls the gesture distinctly because of Bill’s handicapped arm. Mr Stone says his impression was that the gesture meant the nephews known to Mr Stone, but Mr Stone is careful to say that he cannot be certain as to what the gesture meant.

[24]   Mr Stone also notes it was his understanding Bill was only changing the 2006 Will because David had died the previous year and Bill needed to appoint new executors. Bill did not advise Mr Stone he wanted any other changes.

Evidence of Gregory Stokes

[25]   Gregory is one of the executors under the 2006 Will. As I have noted, he was one of Bill’s nephews and well known to Bill throughout. Gregory’s late father, David, being one of Bill’s original executors under the 1987 Will, as I have said, had died in 2006, hence Bill’s reason it seems to have the 2006 Will drawn up.

[26]   Gregory says Bill told him he had made a new Will as a result of David having died. While Gregory says he did not question Bill as to the contents of the Will, it was Gregory’s understanding from Bill that the provisions of his Will had not changed other than in respect of Gregory becoming an executor.

[27]   Gregory confirms that when he met with Mr Stone after Bill’s death and told Mr Stone that Bill had other nephews, Mr Stone was surprised at that fact. Gregory describes a close relationship with Bill describing him as more like a brother to him and Gregory’s siblings.

[28]   Gregory’s evidence confirms that Bill was not close to his brother, Richard. Gregory says that having been through Bill’s photographs, there are no photographs of Richard or his family from about the mid-1960s. Gregory notes that neither Richard nor his family came to the funeral of Gregory’s father, David, or to Bill’s funeral.

[29]   Richard died in 2019 and while Bill apparently acknowledged that Richard had died, he did not want to talk about Richard or his family. Bill did not go to Richard’s funeral. Bill apparently did not mention Richard’s children over the years, nor has Gregory found amongst Bill’s possessions any correspondence or birthday or Christmas cards or the like from Richard or his family.

Evidence of Errol Peter Stokes (Errol)

[30]   Errol’s evidence is similar to that of Gregory in relation to the close relationship the first defendants had with Bill. Bill is described as a close member of the family of David and the first defendants. Bill attended family functions such as birthdays and Christmas.

[31]   Errol describes Bill in later years as being keenly interested in all the families of the first defendants. He describes Bill as being particularly interested too in the next generation, that is, his great nephews and nieces.

[32]   That can be compared with Errol describing Bill as only mentioning Richard at around the time of Richard’s death. Other than that, Errol says he did not hear Bill talk of Richard or of Richard’s children.

[33]   Generally, Errol’s evidence is consistent with that of Gregory as to the lack of contact between Bill and Richard’s family.

[34]   Errol recounts incidents where historically Bill would give Christmas presents of $50 but he recalls that, he thinks in 2018, Bill gave each of the first defendants

$5,000 saying that he did not need the money and he intended to distribute his money over time to the first defendants.

[35]   Errol says that over the years on several occasions, Bill made it clear to him that the first defendants were his heirs.

Evidence of Robert Harold Stokes (Robert)

[36]   Robert’s evidence is to a similar effect. However, Robert says he probably had greater day-to-day contact with Bill because he always lived closer to him.

[37]   Robert describes helping Bill with the sale of his house for which Bill was appreciative and gave Robert a bank cheque for $25,000 to go towards a new car. Robert says he and his wife used the car to pick up Bill and take him for Sunday lunch and to doctor’s visits and the like.

[38]   Robert describes Bill prompting a discussion about how Robert and his wife Julie in their wills had left their estates. Robert said he was leaving his estate to his brothers. Bill replied that he had done the same thing as Robert and was leaving his estate to the first defendants with Stephen’s share going to his children, David and Zeke.

[39]   Robert says Bill discussed his Will with him and Julie on a few occasions over recent years and that Bill always told them that “Dave’s sons” were the beneficiaries. Robert recounts relatively recently Bill saying that Mr Stone had suggested Bill review his Will. Bill said to Robert that he could not see why as nothing had changed, and it was still made out to Dave’s boys.

[40]   Robert, as with his brothers, confirms that Bill never discussed Richard’s sons. Robert confirms the $5,000 gift referred to by Errol, albeit he says it might have

been in  2017  rather than 2018.     Robert confirmed these gifts did not extend to Richard’s sons.

Julie Stokes

[41]   Julie is Robert’s wife. Julie confirms Robert’s evidence as to what Bill said about how he was leaving his estate and the circumstances in which that issue arose.

Discussion

[42]   As referred to earlier, the first defendants rely here on s 31 or in the alternative, s 32 of the Act. The intent of s 31 is that the Court can correct a will if satisfied it does not give effect to the will maker’s instructions. Section 32 permits the Court to interpret a word which is “ambiguous” on its face. Section 32(4), however, prevents the Court taking into account Bill’s intentions to find ambiguity in the word “nephews”. The word “nephews” in the 2006 Will is not ambiguous on its face.

[43]   The question for the Court is whether the evidence as to Bill’s intentions at the time the 2006 Will was prepared are reflected in the will.

[44]   I am satisfied that the use of the general term “nephews” in the 2006 Will did not reflect what Bill intended and thus s 31(1)(b) applies to permit the Court to make an order correcting the Will to give effect to Bill’s intentions.

[45]The evidence that leads to that conclusion is as follows:

(a)The 1987 Will specifically referred to David’s children. The prompt for the change to that Will was David’s death and the evidence before me is that the only change Bill wanted to make was to his executors.

(b)Mr Stone’s evidence is that there were no discussions as to a change of beneficiaries nor was Mr Stone aware of Bill having other nephews, notwithstanding Mr Stone’s connection with some of David’s children. Accordingly, Mr Stone was not aware that the use of the general term “nephews” did not capture what Bill intended.

(c)Bill was effectively estranged from Richard and did not have ongoing contact with Richard’s children. There was almost no activity between Richard, his sons and Bill and in particular no recognition of important occasions in the family such as birthdays or the deaths of family members. The estrangement predated the 2006 Will by many years. There was no change in circumstances leading up to the 2006 Will which would have been consistent with Bill changing his intention from that recorded in the 1987 Will.

(d)In stark contrast to Bill’s lack of contact with Richard’s children was Bill’s significant and ongoing contact with David’s family, David’s sons, and their families.

(e)From what Bill said to David’s children, Bill understood that it was the first defendants who would be the beneficiaries of his estate.

[46]   Finally, Richard’s children upon reviewing the evidence summarised earlier in this Judgment, discontinued their opposition to the orders. I infer from that discontinuance that the second defendants were not in a position to contest the evidence relied on by the first defendants.

The orders sought

[47]   Counsel for the plaintiffs and for the first defendants (the second defendants having discontinued) by consent, seek the following orders. For all the reasons I have outlined above, I am also satisfied that the orders are appropriate.

[48]Accordingly, the following orders are made:

(1)There is an order granting the plaintiffs Probate in solemn form of the Will of William John Stokes dated 9 October 2006.

(2)There is an order that “nephews” within the Will is to be interpreted as meaning the sons of David Stokes with the effect that the residue is to

be divided into five shares to be distributed to David’s descendants as follows:

(i)Gregory David Stokes as to one share;

(ii)Andrew Mark Stokes as to one share;

(iii)Errol Peter Stokes as to one share;

(iv)Robert Harold Stokes as to one share; and

(v)David John Stokes and Zeke Sinclair Stokes as to one share equally between them.

(3)That the costs of the plaintiffs and the first defendants are to be met from the estate on a solicitor and on-client basis.

...................................................

Gendall J

Solicitors:

Jared Ormsby, Barrister, Christchurch Dallison Stone, Christchurch

White Fox & Jones, Christchurch Stace Hammond, Hamilton