Wilson v Saunders - [2016] NZHC 1211

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV-2016-425-000022 [2016] NZHC 1211

UNDER the Land Transfer Act 1952

IN THE MATTER

of an application under S 145A of that Act for an order that a caveat not lapse

BETWEEN

S A WILSON AND OTHERS Applicants

AND

R J SAUNDERS Respondent

Hearing: 30 May 2016

Appearances:

A C Ward for Applicants
G L Wilkin for Respondent

Judgment:

7 June 2016

JUDGMENT OF ASSOCIATE JUDGE OSBORNE
as to lapsing of caveat

Introduction

[1] The applicants seek to sustain a caveat lodged against the title to an Invercargill property. They claim to be entitled as beneficiaries of a constructive trust arising from an arrangement between their father and stepmother to be effected through mutual wills.

Background

The family history

[2] The applicants’ father was Kenneth White (Ken). Through his first marriage, Ken had four children (the applicants in this proceeding). Ken separated from his
first wife in May 1979 and thereafter entered into a relationship with Patricia White

WILSON v SAUNDERS [2016] NZHC 1211 [7 June 2016]

(Pat). Pat had four children by a previous marriage, one of whom (Kelvin) predeceased her. One of her children, Raewyn Saunders (Raewyn), is executrix of Pat’s will and therefore respondent in this proceeding. Ken and Pat married in 1984. They owned their home in Nelson Street, Invercargill. Ken died on 29 July 2013. Pat died on 8 April 2015.

Ken and Pat’s mutual wills

[3] On 10 October 1984, Ken and Pat had made wills whose provisions corresponded or mirrored one another. Each left everything to the survivor but with the residue, if the other predeceased, to be divided amongst their surviving children in equal shares. Ken and Pat’s main asset at the time was the Nelson Street property, and it remained so.

[4] On 9 November 2011, Ken and Pat executed fresh wills. Their provisions again corresponded. Each left everything to the survivor but with the residue if the other predeceased them to be divided amongst their surviving children (at that point, seven) in equal shares (with a substitutory provision for the children of any deceased child). The 9 November 2011 wills were the wills in force when Ken died in July
2013.

Pat’s last will

[5] Pat’s last will was dated 15 August 2013, made some two weeks after Ken’s death (Pat’s will). By Pat’s will, she expressed the wish (not a direction) that Raewyn distribute personal effects in accordance with instructions Pat may have communicated to Raewyn. Pat then directed that the residue of her estate be distributed equally among her three surviving children. The two significant assets of Pat’s estate are the Nelson Street property (with an approximate value of $146,000) and bank accounts (with funds close to $22,000).

[6] Following Pat’s death in 2015, Raewyn contacted one of the applicants, Sandra Wilson (Sandra). Sandra uplifted some personal items relating to Ken. When Sandra was not further contacted as to the administration of Pat’s estate, she

obtained a copy of probate…

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 Saunders

Details

AGLC: Wilson v Saunders [2016] NZHC 1211
Case: [2016] NZHC 1211
Decision Date: 7 June 2016

CaseChat Overview and Summary

The applicants, four of the six children of the late Kenneth John White, sought to sustain a caveat against the title of a property in Invercargill owned by the late Patricia Joy White, Kenneth's wife and the applicants' stepmother. The applicants claim an entitlement to a beneficial interest under a constructive trust arising from an arrangement between Kenneth and Patricia to be effected through mutual wills. The legal issues in the case were whether the applicants had established the existence of mutual wills and whether such interest of the applicants as came into existence was a caveatable interest in the Nelson Street property. The court found that the applicants did not have a reasonably arguable claim to a beneficial interest in the Nelson Street property. The application for an order that the caveat not be removed must fail. Costs were to follow the event. The applicants were to pay costs on a scale basis, but with the allowance for item 38, sch 3 High Court Rules, to be one day instead of two days.

Orders