Swanhick v Bostock - [2023] NZHC 1600

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2022-441-53

[2023] NZHC 1600

UNDER the Law Reform (Testamentary Promises) Act 1948

IN THE MATTER

of a Testamentary Promises claim in the estates of Kenneth Earl Swanwick and Betty Reid Swanwick

BETWEEN

TIMOTHY EARL SWANWICK

Plaintiff

AND

EDWARD ANTHONY BOSTOCK as

sole executor and trustee of the estate of Kenneth Earl Swanwick (deceased)

First Defendant

EDWARD ANTHONY BOSTOCK as

sole executor and trustee of the estate of Betty Reid Swanwick (deceased)

Hearing:
2 December 2022 (part heard only);

final submissions received on 14 April 2023

Appearances:

S J Webster for Plaintiff

M C De Jong for First and Second Defendants N T Gray for Interested Parties

Judgment:

27 June 2023

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1] In this proceeding, the plaintiff, Timothy Swanwick (“Tim”),1 is advancing claims pursuant to the Law Reform (Testamentary) Promises Act 1948 against the

1 I am proposing to use first names for certain parties. No disrespect is intended. It is merely an attempt to avoid confusion. I am using the diminutive version of the plaintiff’s first name as that is the version that counsel have used.

SWANWICK v BOSTOCK [2023] NZHC 1600 [27 June 2023]

estates of his late father, Mr Kenneth Swanwick (“Mr Swanwick”), and mother, Mrs Betty Swanwick (“Mrs Swanwick”).

[2] Before the Court for determination is Tim’s interlocutory application for an order pursuant to s 6 of the Testamentary Promises Act extending the time for the commencement of his claim against Mr Swanwick’s estate pursuant to that Act. The defendant of course adopts a neutral position. Tim’s application is opposed by his three siblings: Caryl Swanwick (“Caryl”), Angela Swanwick (“Angela”) and Judith Miratana (“Judith”), (collectively, “the interested parties”).

[3] Mr Swanwick died on 28 August 2008. Probate in relation to his will was granted on 26 September 2008. Mrs Swanwick died on 30 June 2021. Probate in relation to her will was granted on 15 September 2021. The details of the estates and the terms of Mr and Mrs Swanwick’s wills are unimportant. It is sufficient to say that the combined value of the estates was reasonably substantial; over $5 m. Their assets consisted primarily of four properties, including a family farm which is at the centre of this case.

[4] The defendant, Mr Edward Bostock, is the sole personal representative in relation to both estates. In his will Mr Swanwick named Mrs Swanwick and his solicitor, Mr Malcolm Walker, as his executors and trustees. In her will Mrs Swanwick named Tim, Judith and Mr Bostock as her executors and trustees. Tim and Judith renounced their executorships and trusteeships, leaving Mr Bostock as the sole personal representative in relation to Mrs Swanwick’s will. On 1 June 2021 Mr Walker retired as the personal representative in relation to Mr Swanwick’s will, and Mr Bostock was appointed in his stead.

[5] Tim’s case is that his parents made a promise, or series of promises, to him that…

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 Swanhick v Bostock

Details

AGLC: Swanhick v Bostock [2023] NZHC 1600
Case: [2023] NZHC 1600
Decision Date: 27 June 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Napier Registry, the case Swanhick v Bostock involved Timothy Swanwick's claim under the Law Reform (Testamentary Promises) Act 1948 against the estates of his late father, Kenneth Swanwick, and his mother, Betty Swanwick. Timothy argued that his parents had promised to leave their half-interest in a family farm to him, and he had worked on the farm and other family properties for over 30 years relying on this promise. The court had to decide whether Timothy could extend the time for commencing his claim against his father's estate under the Testamentary Promises Act. This application was opposed by his three siblings, Caryl, Angela, and Judith Miratana.

The legal issues before the court were whether the time for commencing the action had expired, whether there had been a final distribution of Kenneth Swanwick's estate, and if not, whether the court should exercise its discretion to extend the time limit for Timothy to commence his claim. The court concluded that the estate had been finally distributed as the executors had completed their functions and were holding the assets as trustees under the will trust. Therefore, the court did not have jurisdiction to exercise its discretion under the proviso to s 6 of the Testamentary Promises Act. Even if the court had jurisdiction, it would not have exercised the discretion in Timothy's favour due to the significant delay in commencing the proceeding and the weak prima facie merits of the claim.

The court dismissed the application, reserving the costs. Timothy could still pursue his claim against his mother's estate and his alternative claim in constructive trust against both estates.

Orders