Wairua v Norman HC Whangarei CIV-2010-488-584
[2011] NZHC 859
•25 March 2011
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CIV-2010-488-584
IN THE MATTER OF THE ESTATE OF MATEKINO WAIRUA
BETWEEN HENI WAIRUA Plaintiff
ANDWAHINEITI RUTH NORMAN First Defendant
ANDTE REWAREWA PETA-WAIRUA Second Defendant
Hearing: 14 February 2011
Appearances: J Browne and M Singh for the Plaintiff
N L Faigan for the First Defendant
Judgment: 25 March 2011
RESERVED JUDGMENT OF PRIESTLEY J
This judgment was delivered by me on Friday 25 March 2011 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Counsel/Solicitors:
J Browne, Henderson Reeves Connell Rishworth, DX AP24505, Whangarei. Fax: 09 438 6420
Email: [email protected]N L Faigan, DX CP24138, Auckland 1140. Fax: 09 307 1246
Email: [email protected]
WAIRUA V NORMAN HC WHA CIV-2010-488-584 25 March 2011
The issue
[1] Matekino Wairua (the deceased) died on 2 March 2006. Her will, dated 14
October 1985 (the will) had been prepared by a Whangarei solicitor. On the evidence this will had neither been revisited nor revised by the deceased in the intervening 20 years. The will appointed one of her daughters, the first defendant Mrs W R Norman, executor and trustee. Appointed too was one of the deceased’s sons. The son, however, renounced probate. Thus probate was granted to Mrs Norman alone by the High Court in Whangarei in August 2006.
[2] Administration of the estate was time-consuming. The deceased had 12 children and 29 grandchildren. Communications between the whanau took time. Personality clashes probably did not assist.
[3] The fundamental problem, now lying at the heart of this proceeding, was a residential property the deceased owned, and in which she lived until approximately
12 days before her death at 44 Corks Road Whangarei (Corks Rd). No specific mention or devise of the property was contained in the deceased’s will.
[4] The will contains the following clause (clause 3(e)):
(e) I GIVE AND BEQUEATH free of all duties the residue of my said estate including all my clothing jewellery and all other articles of personal use to the member of my family or to my friend with whom I am residing immediately prior to the date of my death.
[5] Shortly before her death the deceased had resided at Corks Rd with two of her daughters, the plaintiff Heni Wairua and the second defendant Te Rewarewa Peta-Wairua. It is effectively common ground, and certainly there is no evidence to the contrary, that there were no other permanent residents of Corks Rd in the months preceding the deceased’s death. So the obvious question, which is the issue of the proceeding, is whether the above clause is a valid devise of Corks Rd to the plaintiff and the second defendant.
[6] The first defendant did not seek directions from this Court on the interpretation issue. As a result, the plaintiff began this proceeding, seeking a
declaration that Corks Rd is part of the estate’s residue which should be distributed to her and the second defendant under clause 3(e). The first defendant disputes this interpretation and submits that the Corks Rd property is covered by other clauses of the will or, if not, it is governed by intestacy rules.
[7] For some reason, which counsel did not explain, although all the interests of Te Rewarewa Peta-Wairua seem to coincide with the plaintiff’s, she was cited as a second defendant rather than a co-plaintiff or second plaintiff. She has taken no steps.
The will
[8] The scheme of the deceased’s will and some of its clauses are relevant to its
construction.
[9] Clause 1 is a standard revocation clause declaring the will to be the deceased’s last will. Clause 2 is also a standard clause, appointing the deceased’s son and the first defendant executors and trustees.
[10] Clause 3, the introductory parts of which are standard, contains five specific subclauses. The wording of the introduction points to the deceased intending to deal with her entire estate;
3. I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal of whatsoever nature and kind and wheresoever situate of which I shall be possessed or to which I shall be entitled or over which I shall have any disposing power at the date of my death unto my trustees UPON TRUST to pay thereout my just debts funeral graveyard and testamentary expenses and all duties payable in respect of my dutiable estate and TO HOLD the residue thereof upon the following trusts:-
The five subclauses then follow:
[11] Clause 3(a), in respect of which the first defendant’s counsel mounted an
argument, reads as follows:
(a) I GIVE AND BEQUEATH all my money and proceeds of bank accounts, shares, insurance policies and other monetary investments [emphasis added] UNTO such of the children of my sons and daughters namely [names of deceased’s 12 children appear] as are living at the date of my death and if more than one in equal shares.
[12] Clause 3(b) is a straight devise to one of the deceased’s sons of a piece of
Maori land.
[13] Clause 3(c) is a gift and bequest of all furniture, plate, plated goods, linen, glass, china, books (except books of account), pictures, prints, statuary, musical instruments, wines, liquors, and consumable stores:
... and all other articles of domestic use or ornament to the occupier of the residence in which they are installed or placed at the date of my death.
Leaving aside the description of the donee of the chattels covered by clause 3(c), I note that the descriptions of a wide class of domestic chattels and goods commonly appeared in standard clauses of this type used in New Zealand wills for most of the
20th century.1
[14] The donee of clause 3(c) is specified as “the occupier of the residence in which they are installed or placed at the date of my death”. This is a different form of words from the words used in clause 3(e) where, rather than the occupier, the donee is “the member of my family or to my friend with whom I am residing immediately prior to [rather than at the] date of my death”.
[15] Clause 3(d) is a bequest of all crystalware to the deceased’s son-in-law, the
first defendant’s husband.
[16] The critical clause 3(e) appears above at [4].
[17] The final clause of the will, clause 4, contains various wide trustee empowering clauses which do not bear on the interpretation issue.
1 W Douglas, J England and N Richardson Nevill’s Will Draughtsman’s Handbook [5 ed, LexisNexis, Wellington, 2006) at [3.5.1].
[18] There is a paucity of information about the execution of the will. The evidence of the lawyer who prepared the will is not before the Court. It is not clear whether all relevant contemporaneous evidence has been briefed. However, a memorandum which appears to have come from a file of the Whangarei practitioner, Ms Ann Gardner (whose firm prepared the will), was annexed as an exhibit by the first defendant. It reads:
Wants daughter (single but looking after another brother’s/sister’s children) to have her house in Corks Rd. Client moving in with another relative. A son and daughter accompanied her. Discussed house passing in will/gift/sale. Decided sale – mother to do with proceeds as she wished. Maybe give some back to daughter to refurbish house.
This comment is then bracketed on the left hand side of margin with the word “sale”. The handwritten notes suggest there were two visits of approximately 1¾ hours duration in total and that a will was made.
[19] When she signed her will the deceased would have been aged approximately
76. There is no official record of the date of the deceased’s birth. The unchallenged evidence of the plaintiff was that, as best she could research it, her mother was aged between 95 and 97 when she died.
[20] A letter from Ms Gardner was produced as evidence. The letter is addressed to the plaintiff and is dated 26 August 1997. The letter in its entirety reads:
Mrs M H Wairua C/- H Gray Pahaoa Marae RD 3
Opotiki
Dear Madam,
re: Matekino Wairua
Thank you for your letter dated 11 August 1997. I enclose herewith
for your information a copy of Mrs Wairua’s will.
Mrs Wairua still owes me the sum of $25.00 for the preparation of the
Will and I would be grateful if you could forward that to me.
You will note that in the residue clause of the Will she leaves everything to whichever relative she is residing with at the time of her death. At this stage that may also mean her house in Corks Road because although she was going to sell it as far as I know she did not do so.
[21] The provenance of this letter is obscure. There was evidence from the plaintiff that, between approximately 1993 and 2000, she and her mother were living in Opotiki. Exactly why the plaintiff would be writing to Ms Gardner about her mother’s will in 1997 has not been explained. The letter is annexed to one of the plaintiff’s affidavits. The organisation of that affidavit suggests that the letter has been produced to counter an assertion made by the first defendant in a letter she wrote to the plaintiff’s solicitors in March 2010 which inter alia states:
Notes have been obtained from the lawyer who drew up Mum’s will (Ann Gardner) and it is recorded that her Legal Executive Officer raised the question of the house with Mum, Peta, and Rewa (attendees at the meeting). Mum’s decision was that the house would be sold and not gifted. I therefore believe Mum meant the house to be sold after her death and the money from this investment distributed as outlined in clause 3A of her will.
[22] In the same way that the plaintiff’s evidence is silent as to why she wrote to Ms Gardner on 11 August 1997 – no copy of her letter is available – there has been no evidence from “attendees” at the meeting or from the witnesses to the will.
Cross-examination of the plaintiff
[23] Mr Faigan cross-examined the plaintiff on the two affidavits she has filed. The plaintiff’s viva voce evidence, which included answers to a number of questions posed by the Court, covered background and family matters but added very little so far as the dispute was concerned. Evidence which fleshed out what was already contained in the affidavits included information about the deceased’s failing health, her forgetfulness, and problems she had with her sight and her hearing. There was no evidence relevant to the deceased’s 1985 intentions or her subsequent views about her estate and her will.
[24] Mr Browne’s submissions for the plaintiff comprised three broad points. First, the deceased’s property at Corks Rd could not possibly be regarded as a “monetary investment” for the purposes of clause 3(a) of the will. Secondly, the house was clearly part of the deceased’s residuary estate. Thirdly, as part of the residuary estate, the house was governed by the term “the residue” in clause 3(e) of the will. In counsel’s submission the deceased’s will, and in particular clause 3(e), was not ambiguous. In interpreting wills there is a presumption against an intestacy.
[25] Because the deceased died before 1 November 2007 the relevant law was the Wills Act 1837 (Imperial), not the Wills Act 2007 (a proposition with which Mr Faigan agreed). Thus extrinsic evidence could be admitted for very limited purposes2 and, in this case, there could be no doubt about the deceased’s intention. The Corks Rd property was clearly part of the deceased’s residuary estate; was not governed by any of the other clause 3 sub clauses; and thus passed to the plaintiff and the second defendant under clause 3(e).
[26] On the issue of whether the deceased had been residing with the plaintiff and second defendant at Corks Rd immediately prior to her death, Mr Browne relied on a dictum of Lord Denning in an electoral case Fox v Stirk; Ricketts v Registration Officer for the City of Cambridge.3 That case held that the verb “reside” meant to dwell permanently or for a considerable time, or to have one settled or usual abode. Lord Denning derived three principles from the word and the law for electoral purposes.4 The first was that a person could have two residences. The second was that a temporary presence at an address did not make a person resident there (such as a guest or short stay visitor). The third principle was that temporary absence did not deprive a person of his residence if the person happened to be away for a holiday or
in hospital. The residence was not lost in those situations.
2 Compare with s 32 of the 2007 Act, which permits the court to use external evidence to interpret a will if there is ambiguity on the face of the will or uncertainty in light of the surrounding circumstances.
3 Fox v Stirk; Ricketts v Registration Officer for the City of Cambridge [1970] 3 All ER, 7.
4 Ibid, at 11-12.
[27] The second and third principles have been respectively adopted in two
District Court cases, Morse v Elson-Haigh,5 and Bawden v Moose Holdings Ltd.6
[28] Mr Faigan’s primary submission was that, particularly having regard to the extrinsic evidence of Ms Gardner’s 1997 letter, the house should be regarded as a “monetary investment” for the purposes of clause 3(a). In counsel’s submission, if, when she made the will, the deceased had in her contemplation the imminent sale of her home, then undoubtedly the sale proceeds would have been placed into some form of investment.
[29] When pressed on this issue Mr Faigan’s submission was, in effect, that as a matter of interpretation, given the circumstances of the deceased and her family, it made sense for her house to be classified as a monetary investment. Mr Faigan advanced the proposition that, because clause 3(a) stipulated some 29 grandchildren as beneficiaries, they all could not physically live in or benefit from the house. They could only benefit if the house was sold and converted into money or a monetary investment. Therefore clause 3(a) must, in those circumstances, extend to the house.
[30] Relying again on the circumstances which surrounded the will’s execution, because when the will was drafted the deceased intended to sell the house, it followed that clause 3(e) was not intended to extend to the house, despite the use in that subclause of the word “residue”.
[31] Were both those submissions to be unacceptable then, in Mr Faigan’s submission, there was an intestacy in respect of the Cork’s Road property. Use of words in clause 3(e), and in particular the itemised description of personalty, made it impossible for the subclause to extend to realty. Mr Faigan accepted that the introductory words of clause 3 which included the word “devise” were sufficient to pass ownership of Corks Rd to the executors, but there was no further relevant
disposition.
5 Morse v Elson-Haigh [1998] DCR 392.
6 Bawden v Moose Holdings Ltd [1994] DCR 197.
[32] Certainly the handwritten notes (supra [18]) suggest that, when the deceased was consulting her solicitor in 1985, she was contemplating the sale of the Corks Road property with the possibility of retaining an inter vivos discretion as to what she wanted to do with the sale proceeds. Had her home been sold then any retained money would clearly have passed under clause 3(a) of the will to the deceased’s grandchildren. But the property was not sold. Nor was the will altered or revised.
[33] There is nothing ambiguous or unclear about clause 3 of the will. The deceased’s entire estate is devised and bequeathed to her trustees (in this case the first defendant), to hold upon various trusts. The first trust is to pay debts, expenses, and duties with the residue then being held upon the five trusts specified in the sub clauses. Halsbury’s Laws of England7 states:
What residuary gift comprises. A general residuary gift passes everything not disposed of, whether the testator has not attempted to dispose of it or whether the disposition fails by lapse or any other events. In order to exclude from such a gift a particular property belonging to the testator and not otherwise disposed of by will it is necessary to find a plain and unequivocal intention on his part not to include that property in the residuary gift; the mere fact that he is under the erroneous impression that the particular property is not his to dispose of does not exclude the property from the residue.
[34] Theobald on Wills similarly states:8
A residuary gift is one that is intended to pass everything not otherwise disposed of by the will, including legacies that have failed, and even when the language of the residuary gift would not naturally include failed gifts. It is nonetheless possible for there to be both a residuary gift and a partial intestacy, as where the residuary gift fails in whole or in part, and there are circumstances in which certain property is excluded from the gift of the residue.
[35] The same authority states:9
It is now less common than formerly to have different residuary gifts for real and personal estate. In the case of a residuary gift of real property, it is not always easy to determine whether it is residuary or not. It is not necessary
7 Halsbury’s Laws of England (5 ed, 2011) Vol 103 Wills and Intestacy at [112].
8 Martyn and others Theobald on Wills (17 ed, Sweet & Maxwell, London, 201) at [22-024].
9 Ibid, at [22-025].
that the word “residue” should be used. Nor need the devise be so framed to include every kind of real estate.
[36] It is not necessary for the purposes of this judgment to review the ancient case law which, because of difficulties which occurred by the omission of certain words, leaving uncertainties in respect of leaseholds and copyholds, or in respect of settled property, led to the enactment of ss 26, 27, and 28 of the Wills Act 1837.10
[37] Of some relevance, however, is s 24 of the 1837 statute which stipulates that every will shall be construed, with reference to real estate and personal estate “comprised in it” to speak and take effect as if it had been executed immediately before a testator’s death “unless a contrary intention shall appear by the will”.
[38] Similarly s 25 provides that unless there is a contrary intention in the will:
... such real estate or interest therein shall be comprised or intended to be comprised in any devise in such will contained, which shall fail or be void ... shall be included in the residuary devise (if any) contained in such will.
[39] These provisions are not determinative. But it was essentially common ground between counsel that the introductory words to clause 3 must have had the effect of passing the Corks Rd property to the deceased’s trustee as part of the residue of the estate. There are no words at all to suggest that the deceased had any intention to exclude Corks Rd from the residue. It may well have been, as the solicitor’s handwritten notes (supra [18]) suggest, that in 1985 the deceased was contemplating the future sale of Corks Rd, thereby realising realty into money. But, had she hypothetically been killed in an accident a few hours after she executed her will, or died at any time up to the sale of Corks Rd, that item of realty could only have passed as one of the assets comprising her residuary estate.
[40] So, what of the five specified trusts which clause 3 imposes on the residue? Is there anything there which gives rise to ambiguity, or suggests the deceased did not intend any of those trusts to apply to Corks Rd or intended to exclude that asset
from the residuary trusts?
10 Still operative in respect of, as in this case, the will of a testator dying before 1 November 2007.
[41] The assets governed by clause 3(a) are tolerably clear. An item of realty cannot properly be described as “money and proceeds of bank accounts, shares, insurance policies and other monetary investments”. Obviously any unspent or undistributed cash generated by the sale of any of the deceased’s realty would fall within the ambit of the clause. But Corks Rd was never sold.
[42] Venning J in Dhaliwal v New Zealand Guardian Trust Co Ltd,11 was faced with the interpretative issue of whether the words “the net proceeds of all savings and investments” used in a will included the deceased’s interest in a specific farming partnership.
[43] His Honour referred to the House of Lords decision Perrin v Morgan,12 in which the House of Lords held that a bequest in a home-drawn will of “all monies of which I die possessed” was sufficient to include all net personalty. On the facts before him Venning J concluded, and I respectfully concur, that the word “investments” was a general word that had a diversity of meanings,13 and although it was wide enough to include stocks, shares and debentures, it did not include the deceased’s specific interest in a farming partnership.14
[44] For these obvious interpretative reasons I reject Mr Faigan’s submission that the words “monetary investments” used in clause 3(a) of the will include Corks Rd.
[45] Clauses 3(b), (c), and (d) (supra [12]-[15])relate to specified realty (Maori land at Otawa), specified chattels, and crystalware respectively. Clearly neither of those trusts extend to Corks Rd.
[46] So the final trust in clause 5(e) (supra [4]) is a straight gift and bequest of
“the residue of my said estate including [clothing, jewellery, and articles of personal
use].”
11 Dhaliwal v New Zealand Guardian Trust Co Ltd HC Ham CP14/01 20 February 2003.
12 Perrin v Morgan [1943] AC 399 (HL).
13 At [23].14 At [29].
[47] On its face the clause extends to the “residue” of the residue. Does this extend to Corks Rd? In my judgment it must.
[48] As the English authority of Re Whitrod Burrows v Base15 exemplifies, there is a distinction between a gift of the residuary estate and a gift of the residue of the residuary estate. Neat issues discussed by Romer J in Whitrod can arise. But, unlike Whitrod, this is not a situation where there has been some lapse of residuary devises. There is no ambiguity about or lapse of any of the residuary trusts created by clauses
3(a) – 3(d) inclusive. As a matter of interpretation, clause 3(e) clearly and unambiguously applies to “the residue” of the deceased’s residuary estate. This residue must include Corks Rd.
[49] I turn to the issue of whether, as a matter of interpretation, the use of the words “clothing, jewellery, and all other articles of personal use” in clause 3(e) exclude, as a matter of interpretation, realty.
[50] Theobald16 at 23-019 puts the matter succinctly under the subheading
“acertaining the leading words of description”.
In order to decide whether the testator has shown an intention to give the unrestricted whole a question of construction may arise – which, if any, are the leading words of description in the will? This question is to be answered by reading the will as a whole in the light of the surrounding circumstances in which it was made. The leading words may be found in the earlier part of the description, which constitutes a complete description of the thing given followed by a subordinate misdescription as to some particular connected with it. Or the leading words may be found in the later part of the description, as in a case where the later part substitutes a definite and precise description of the thing given in place of an earlier or general description. Or there may be no leading words of description, as in a case where the subsequent description is so connected with the earlier description as to form part of the complete description of the thing given.
[51] The leading words, so far as clause 3(e) is concerned are “the residue of my said estate”. That must refer back to the introductory words of clause 3 which devise and bequeath to the trustee the whole of the deceased’s estate both real and personal and to hold “the residue” on trust, such residue clearly being the deceased’s entire
estate after payment of debts and duties. So “the residue” which are, as I have said,
15 Re Whitrod Burrows v Base [1926] Ch 118.
16 Op cit.
the leading descriptive words of clause 3(e), are “the residue of my said estate”. Clearly, and I see no scope for ambiguity, those words must cover the balance of the deceased’s estate not disposed of by the previous four residuary trusts.
[52] The descriptive words which follow make it clear, in my judgment, that the deceased’s clothing, jewellery and other articles of personal use, are included in the residue of the residuary estate. The words of description do not detract from the leading descriptive words “the residue”. Rather they amplify the leading description.
[53] My conclusion is therefore that clause 3(e), as a matter of interpretation, imposes a residuary trust in respect of Corks Rd with the result the property is to be held in the specified trust in clause 3(e). The use of the word “devise” used in the introductory words of clause 3 must extend both to Corks Rd and the Maori land covered by clause 3(b). A devise means a gift of real property. A bequest means a gift of personal property.17
[54] I do not consider the omission of the word “devise” from clause 3(e) removes
Corks Rd from the ambit of that clause and leads to an intestacy.
[55] The remaining issue is the identity of the beneficiaries of clause 3(e). These are “the member of my family or ... my friend with whom I am residing immediately prior to the date of my death”.
[56] On the basis of the evidence there does not seem to be any dispute that, when the deceased left Corks Rd for Whangarei Hospital on 18 February 2006, never to return, she was residing with her two daughters, the plaintiff, and the second defendant. I do not understand Mr Faigan to be disputing that. Nor do I understand there to be any contention, or indeed evidence, that there were other friends and family members with whom the deceased was “residing immediately prior to” her
death.
17 Theobald, above n 7 at [13-113].
[57] Earlier in this judgment18 I referred briefly to the discussion by Lord Denning MR in Fox v Stirk.19 The concept of residence can be of critical importance in revenue and election cases. Lord Denning referred to an earlier dictum of Viscount Cave LC in Levene v Inland Revenue Commissioner:20
The word “reside” is a familiar English word and is defined in the Oxford English Dictionary as meaning “to dwell permanently or for a considerable time, to have one’s settled or usual abode, to live in or at a particular place”.
[58] Fox v Stirk required scrutiny of the entitlement of students at Cambridge and Bristol Universities to enrol in the constituencies in which those universities were situated rather than the constituencies of their parental homes. Lord Denning enunciated the third principle to which I have referred, that temporary absence did not deprive a person of residence. He gave by way of an example absence on a holiday or absence for a weekend or whilst in hospital. He also stated that a person may properly be said to be “resident” in a place where the stay has a considerable
degree of permanence.21
[59] The example of being in hospital is apposite. On the evidence, it would appear that the deceased was resident in Corks Rd from approximately 2000, when she returned to Whangarei from Opotiki, until 12 days before her death, when she was admitted to Whangarei Hospital and subsequently to the hospice where she died.
[60] Although (there being no evidence on the topic) the deceased, suffering from dementia, may intuitively have known when she was admitted to hospital that her life was drawing to a close and that she might never return to her home, I decline to hold that her admission to hospital constituted an abandonment by her of residence in her own property where she had lived uninterruptedly for approximately the previous six years. Therefore, I conclude that, at the time of the deceased’s admission to hospital in 2006, she was resident in Corks Road for the purposes of
clause 3(e).
18 At [26].
19 Fox v Stirk above n 2
20 Levene v Inland Revenue Commissioner [1928] AC 217 (HL) at 222.21 At 12.
[61] The phrase “with whom I resided” contemplates an examination not only of the deceased’s residence, but also the residence status of the other persons connected with Corks Rd (being the deceased’s daughters). In order for the phrase to capture her daughters, it must be shown that they too resided with the deceased at the property. As discussed earlier (supra [5]), it seems to be common ground that the deceased’s two daughters maintained a permanent presence at Corks Road. Therefore, I conclude that they were also residents at the property and the beneficiaries of clause 3(e) of the deceased’s will.
[62] It thus follows that the beneficiaries of clause 3(e) of the deceased’s will must be the family members or friends with whom she was residing at the time of her admission to hospital in 2006.
[63] I accept that, in the eyes of other whanau members, the emergence of the plaintiff and the second defendant as the beneficiaries of clause 3(e) might be regarded as a windfall. Possibly it was not what the deceased, had she turned her mind to the situation, intended. The stark fact remains, however, that having given vague indications in 1985 about her future plans with the Corks Rd property, the deceased, for the next two decades, took no steps whatsoever either to sell Corks Rd or to revise her will. The consequences of her will cannot, as a matter of law, be avoided.
Result
[64] For the reasons which I have stated in this judgment, the deceased’s property at 44 Corks Road, Whangarei must pass, as part of the deceased’s residuary estate, to the beneficiaries stipulated in clause 3(e) of her will.
[65] I note that the plaintiff ’s amended statement of claim seeks first a declaration that the Corks Road property is part of the estate’s residue to be distributed to the plaintiff and the second defendant. The plaintiff also seeks an order for the transfer of the property and indemnity costs.
[66] In the light of this judgment counsel should be able to agree on framing an appropriate draft order for sealing. I direct that they are to confer in that regard. Any draft order is to be referred to me for approval.
Costs
[67] During the course of the hearing I indicated to counsel I leaned to the view that the costs of this proceeding should be borne, not by one of the parties, but by the estate itself.
[68] I cannot see, at the moment, any justification for awarding indemnity costs against the first defendant. The first defendant, by the grant of probate to her, was charged with the administration of the deceased’s estate in accordance with the will. I see no basis for her to be personally exposed to costs and in any event she would be entitled to indemnity from the estate.
[69] Although the first defendant might perhaps be criticised for not having sought directions herself at an earlier stage, I am conscious of the fact that all parties and beneficiaries are Maori; that emotionally and practically they probably would have regarded their mother’s residence as being whanau property; and that the perception of many of the whanau would have been that the 44 Corks Road property should be divided between the whanau rather than given to specific members of it. In that context I am disinclined to show the Court’s disapproval by an award of costs or indemnity costs against the first defendant.
[70] It seems to me that, despite my findings, there were legitimate uncertainties over the proper interpretation to be applied to clause 3 of the deceased’s will. Those uncertainties, in part, would have been compounded by what seems to have been the deceased’s approach of initially indicating in 1985 that she would probably be selling Corks Rd, and then taking no further steps to realise that asset. Importantly, she took no further steps to revise her will, despite the comments contained in Ms Gardner’s 1997 letter.
[71] In those circumstances I lean to the view that the costs of the litigation should in their entirety be borne by the estate.
[72] If Mr Browne has a contrary view he is invited to submit a memorandum on costs within 15 working days with Mr Faigan having leave to reply within 10 working days thereafter.
[73] Absent any such memoranda, however, I shall assume that costs are no longer an issue.
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Priestley J
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