Wilson v Davidson - [2016] NZHC 1238

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2015-412-000113 [2016] NZHC 1238

UNDER The Declaratory Judgments Act 2008

IN THE MATTER

of the estate of ANNIE ANDERSON DILLON

BETWEEN

CATHERINE VIRGINIA WILSON, PATRICIA ANNE MATHESON, BARBARA ANN SMITH, RACHEL ELIZABETH WATSON, JOHN GEORGE HEALY

Plaintiffs

AND

HELEN IRENE DAVIDSON Defendant

CIV-2015-412-000117

UNDER The Wills Act 2007

BETWEEN HELEN IRENE DAVIDSON Applicant

ANDCATHERINE VIRGINIA WILSON, PATRICIA ANNE MATHESON, BARBARA ANN SMITH, RACHEL ELIZABETH WATSON, JOHN GEORGE HEALY
Respondents

Hearing: 2 June 2016

Appearances:

C S N Gardner for Defendant/Applicant
R G R Eagles for Plaintiffs/Respondents

Judgment:

9 June 2016

JUDGMENT OF NATION J

WILSON & ORS v DAVIDSON [2016] NZHC 1238 [9 June 2016]

Introduction

[1] Annie Anderson Dillon was a retired farmer of Milton. On 8 October 2013, she made a will. She appointed a solicitor of Dunedin, Helen Irene Davidson, her executrix and trustee. She made a gift of “my house unit at Chatsford to Robert Rutter”.

[2] In her will Annie Dillon left $440,000 in legacies to a number of different people. She left jewellery, heirlooms and ornaments to be divided as equally as possible between her nieces and forgave any debts that might have been due to her from personal loans made during her life. The residue of her estate, after payment of debts, was to be divided equally between nephews and nieces or their respective children if any nephew or niece did not survive to share in the residue. That residue, separate from the other legacies and the proceeds from the Chatsford unit, comprised some $648,000 when both proceedings were heard by me on 2 June 2016.

[3] Annie Dillon died on 2 February 2014.

[4] In correspondence to Ms Davidson, solicitors for the nephews and nieces contended the gift to Mr Rutter failed. Ms Davidson filed an originating application for correction of a will seeking the replacement of the words “my house unit at Chatsford” with the words “my occupation rights in my house unit at Chatsford
including any proceeds therefrom”.1

[5] At about the same time, the nephews and nieces filed separate proceedings. They sought a declaration that the gift by the deceased of “my house unit at Chatsford to Robert Rutter” fails and that any value attaching to the deceased’s occupational rights of her house unit form part of the residuary estate of the deceased and should therefore be available to the nephews and nieces.

[6] Under Annie Dillon’s occupation right agreement with Chatsford

Management Limited, her rights of occupation of her unit were personal to her and

1 As originally filed, the wording referred to “my house unit at Birchleigh”. Birchleigh was the name of the retirement village when Annie Dillon first moved into it but the unit was the same as that referred to as “Chatsworth” in her last will. The application thus relates to that wording.

could not be transferred. As is common with such occupation right agreements, the agreement terminated on Annie’s death. Her estate was then entitled…

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 Wilson v Davidson

Details

AGLC: Wilson v Davidson [2016] NZHC 1238
Case: [2016] NZHC 1238
Decision Date: 9 June 2016

CaseChat Overview and Summary

The case of Wilson and Others v Davidson involves the estate of Annie Anderson Dillon, a retired farmer who passed away on 2 February 2014. Annie's will, dated 8 October 2013, appointed Helen Irene Davidson as her executrix and trustee, and made a gift of "my house unit at Chatsford" to Robert Rutter. The will also left legacies of $440,000 to various individuals and forgave debts that may have been due to her from personal loans made during her life. The residue of her estate, after payment of debts, was to be divided equally between nephews and nieces or their respective children if any nephew or niece did not survive to share in the residue. The total value of the residue was $648,000.

The primary issues in this case were whether the proceeds from Annie's interest in her house unit at Chatsford should be given to Mr. Rutter or fall into the residue for the benefit of the nephews and nieces and if rectification of the will was necessary in the manner sought by Ms. Davidson.

The court ruled that the wording of the will "my house unit at Chatsford" should be interpreted and applied as referring to the bundle of rights associated with her occupation agreement, including her entitlement to the termination payment and compensation for improvements she made to the unit during her lifetime. The court found that Annie Dillon's intention was to have Mr. Rutter benefit from her interest in the house unit at Chatsford, and that the gift to him did not fail.

In interpreting the will, the court considered the factual context and the intention of the testator. The court also found that if the gift had failed due to the particular words used in the will, it would have been appropriate to rectify the will in the manner sought by Ms. Davidson, pursuant to s 31 of the Wills Act 2007.

In conclusion, the court granted a declaration that Mr. Rutter is entitled to any value attached to the deceased's occupation right agreement for her house unit at Chatsford, including any proceeds from the occupation agreement, pursuant to clause 3(a) of the deceased's last will. The court also allowed for the rectification of the will in the manner sought by Ms. Davidson, amending clause 3(a) to read: "I give my interest in the occupation right agreement for my house unit at Chatsford, including any proceeds therefrom, to ROBERT RUTTER."

Orders