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Turner v Coombe

Turner v Coombe

Case [2018] NZHC 315 15 March 2018

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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2016-419-265

[2018] NZHC 315

BETWEEN
MURIEL GWENDOLINE TURNER

Plaintiff

AND

ANTHONY BRIAN COOMBE AND MURRAY KAID MCLEAN

Defendants

Hearing: 23 and 24 November 2017

Counsel:

W Patterson and L Dixon for Plaintiff

H McIntosh and K Lawrence for Defendants V Bruton QC for parties served

H Carrad for Attorney-General

Judgment:

15 March 2018

JUDGMENT OF WHATA J

This judgment was delivered by me on 15 March 2018 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

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

Solicitors: Patterson Hopkins, Auckland
Greg Kelly Law Limited, Wellington Priscilla Brown, Auckland
Crown Law, Wellington

TURNER v COOMBE [2018] NZHC 315 [15 March 2018]

[1] Clause 9 of Ian Alexander McClean’s Will (the Will) left the residue of his estate to “The Ian McClean Trust” (the Trust) to be formed during his lifetime or by his trustees upon his death for the benefit of the local and wider community, and needy persons (including his nieces and nephews) in the Hauraki Plains/Hauraki/Coromandel area. Clause 9 also says the Trust may “also pay [his] sister’s care and hospital bills.”

[2] However, his sister, Muriel, and two of her children, Gillaine and Darren, now challenge the Will, claiming cl 9 is inherently uncertain and/or unlawfully delegates responsibility for the establishment of the Trust to his executors.

[3]This judgment resolves this challenge.

Background

[4] Ian McClean (Ian) died on 4 April 2013, leaving a Will, dated 28 February 2013. Probate for the Will was granted in May 2013. Under the Will, Ian made several specific legacies and bequests. The validity of those are not challenged.

[5]Clause 9 of the Will, however, is challenged. It states:

I leave the residue of my estate both real and personal of whatever kind and wherever situated, after my testamentary and funeral expenses have been paid, unto my trustees upon trust to a Trust Fund called “The Ian McClean Trust” that will either be formed during my life or is to be formed by my trustees upon my death for the benefit of the local and wider community and needy persons (including my nieces and nephews) in the Hauraki Plains/Hauraki/Coromandel area. It shall have a Deed of Trust and be made up of a Board of Trustees. It may pay my sister’s care and hospital bills. My two executors and my consultant John Dawson shall be founding Trust Board members and they may approach other appropriately qualified and/or experienced persons to become Trust Board members. They shall invest my estate’s capital wisely and distribute each year’s income to suitable successful applicants.

[6] Mr Anthony Coombe and Mr Murray McLean are the executors under the Will. The residue estate included a large farm held by Ian in his name and a second large farm owned by McClean’s Pampas Grass Limited (MPGL). The shareholding in this company and Ian’s farm land were transferred to Mr Coombe and Mr McLean under

the…

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 Turner v Coombe

Details

AGLC: Turner v Coombe [2018] NZHC 315
Case: [2018] NZHC 315
Decision Date: 15 March 2018

CaseChat Overview and Summary

The case of Turner v Coombe [2018] NZHC 315 concerned a challenge to clause 9 of Ian Alexander McClean's Will, which left the residue of his estate to "The Ian McClean Trust" for the benefit of the local and wider community, and needy persons (including his nieces and nephews) in the Hauraki Plains/Hauraki/Coromandel area. The clause also allowed the Trust to pay McClean's sister's care and hospital bills. The plaintiffs, Muriel, Darren, and Gillaine, challenged the validity of the clause on the grounds of uncertainty and unlawful delegation of responsibility for the establishment of the Trust to the executors. The court was required to decide whether the clause was invalid for uncertainty and whether the delegation of trustee powers at clause 9 was unlawful and invalid.

The court found that while the primary objects of the trust were ascertainable and Ian intended to establish a trust for charitable purposes, the provision for Muriel was not charitable and was uncertain in relation to Ian's nieces and nephews. The court also found that the non-delegation rule was not engaged in this case, as the trust was within a class of valid executory trusts, where trust property was vested in trustees, but the interests of the beneficiaries remained to be delimited in a subsequent instrument pursuant to a settlor's clear general intention. The court held that the clause 9 sought to establish an imperfect trust in three key respects: the dominant intention was to create a trust for charitable purposes, Ian intended to provide separately for Muriel, though under the umbrella of a trust for charitable purposes, and unclearly expressed an intention to provide for his nieces and nephews. The court proposed to make an order allocating the Trust gift to the charitable purposes only, subject to some provision being made for Muriel and the nieces and nephews.

In conclusion, the court found the clause 9 of Ian Alexander McClean's Will to be an imperfect trust, with the dominant intention to create a trust for charitable purposes. The court granted leave for the parties to file submissions on the appropriate corrections needed to remedy the imperfections in the clause. The reasonable costs of the parties were to be paid out of the estate, and if these could not be agreed, the parties were to file memoranda of no more than three pages in length.

Orders