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High Court of New Zealand Decisions |
Last Updated: 5 August 2016
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CIV-2014-488-000012 [2016] NZHC 1284
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BETWEEN
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NEIL ROBERT MUMBY AND CHERIE
KAREN CARNEGIE Plaintiffs
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AND
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BRETT JAMES MUMBY AND NEIL ROBERT MUMBY
First Defendants
BRETT JAMES MUMBY Second Defendant
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Hearing:
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7 - 11 March 2016
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Appearances:
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D A Wood and M E Cole for Plaintiffs
P J Magee and C Eglington for Defendants
N C King for Glenda Mumby
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Judgment:
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14 June 2016
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JUDGMENT OF COURTNEY J
This judgment was delivered by Justice Courtney on 14 June 2016 at 4.00 pm
pursuant to R 11.5 of the High Court Rules
Registrar / Deputy Registrar
Date.............................
MUMBY v MUMBY [2016] NZHC 1284 [14 June 2016]
Table of Contents
Para No.
Introduction [1]
Background
Cecil and Glennys [5]
The children [8] Brett returns to the farm [17] Brett farms with his parents: 1999 – 2011 [23] Cecil’s death [27] Glennys’ death [29]
The wills
The 1999 will [30]
The 2010 wills [35]
The 2011 will [38]
First cause of action: will invalid for want of knowledge and approval Proving knowledge and approval [40] Did Glennys know and approve the contents of the 2011 will? [49]
Second cause of action: undue influence [54] Relevant principles [55] General observations [59] Neil’s exclusion from the residuary estate [62] Brett inherits the farm and stock [65] Bad behaviour: Brett’s reaction to Glennys smoking [93] Bad behaviour: nagging Glennys to move out [99] Bad behaviour: the stock moving incident [102] A sense of entitlement to the farm [104] Conclusion on undue influence [109]
Family Protection claim
Relevant principles [110]
The value of the estate at the date of death [115] The moral claims on Glennys’ estate [120] Breach of duty? [129]
Summary of conclusions [133]
Costs [136]
Introduction
[1] Glennys Mumby and her late husband, Cecil, farmed at Taipa for 40
years.1
When Cecil died in 2011 Glennys inherited his share of the farm. When
Glennys died in 2012 she left the farm to her son, Brett Mumby,
who had farmed
with his parents since 1998. The farm represented about 70 per cent of
Glennys’ estate. She left a modest
residential property (the Awanui
property) to her other son, Neil Mumby, and divided the residue between her
daughters,
Glenda Mumby and Cherie Carnegie.
[2] Initially, the children accepted the provisions of Glennys’ will (the 2011 will) and probate was obtained in common form. Now, however, Neil and Cherie challenge the validity of the will. They assert that Glennys did not approve of the contents of her will or, if she did, the will was the result of undue influence by Brett. They seek a declaration that the will is invalid, an order recalling probate and an
order requiring the will to be approved in solemn form.2
Alternatively, if the 2011
will is valid Neil and Cherie seek further provision from Glennys’
estate under the
Family Protection Act 1955.
[3] Brett asserts that Glennys knew and approved the contents of the
will and denies any undue influence over his mother. He
resists the Family
Protection claims.
[4] Glenda is content for the 2011 will to stand. She was joined as an
interested party and was represented at the hearing.
She gave evidence that
supported Brett.
Background
Cecil and Glennys
[5] Cecil bought the farm from his parents when he and Glennys married
in
1961. It comprises three titles with a total area of just over 207 hectares
about six kilometres south of Highway 10 in the Doubtless
Bay area of the Far
North. It is close to the townships of Taipa and Mangonui and about 20 minutes
west of Kaitaia.
[6] For most of the time Cecil managed the farm work and Glennys looked
after the farm accounts and the children; Cherie (born
in 1962), Brett (born in
1964),
1 For convenience, after the initial reference to a family member, I use only the first name.
2 High Court Rules, r 27.34(3).
Glenda (born in 1967) and Neil (born in 1971). Glennys and Cecil had a
traditional view of life – Brett described it as having
a “hand up
rather than a hand out” attitude. Cecil was said to be
“legendary” in terms of his capacity for
hard work. Glennys was an
equal decision maker with Cecil in farming matters and fully apprised of
financial matters relating to
the farm. On Brett’s evidence, by 1998,
she was the dominant partner, having a greater say than Cecil on financial
matters.
[7] Family members and friends portrayed Glennys as a strong, feisty
woman who was not afraid to put someone in their
place if she
thought it necessary. Glennys was also very sociable. She and Cecil
enjoyed a variety of interests,
including music and classic cars and
would travel around New Zealand in connection with these interests. There
can be
no doubt that after his death Glennys must have felt the loss of Cecil
keenly. There were times when she was lonely. But it is
also evident that she
kept herself busy, went out whenever she had the opportunity and impressed her
friends and family with her
strong, positive attitude.
The children
[8] Family life for the children appears not to have been
entirely happy, particularly for the two girls. Glenda
gave unchallenged
evidence of a “difficult” upbringing. She said that she and Brett
were hit regularly, more than Neil
and Cherie. In her case this stopped only
when she announced, at the age of 15, that she was pregnant. The father of
Glenda’s
child was a 41-year-old friend of Cecil and Glennys, Pat
Thompson, whom she married when she turned 16. Cecil and Glennys approved
of
the relationship and were pleased to have another grandchild on the way (by then
Cherie already had twin boys).
[9] Glenda had her first daughter in 1983 and another in 1985. She and Pat lived in a converted Skyline garage on the farm. They separated in 1987 but Glennys pushed Glenda to reconcile with Pat. To escape her mother’s interference Glenda moved to Auckland with her children. Pat remained living in the converted Skyline garage. He had an arrangement with Cecil and Glennys that he could live rent free in exchange for labour on the farm. Neil also recalled that the arrangement included Pat putting aside money for his children. It appears, however, that Pat did neither.
[10] Glenda’s relationship with her parents remained distant until
2010, when Cecil became ill. Then she offered help and
support and, following
Cecil’s death, she continued to have amicable contact with Glennys. I
found Glenda to be clear- eyed
and dispassionate about the dynamics in her
family. She was determined that the dysfunction she saw in those relationships
would
not be carried through to her children.
[11] Cherie married in 1980 (at 18) and had her twins in 1981. Her
marriage ended in 1982 and she, too, moved to Auckland for
a short time before
returning to live in the farm cottage with her sons. She was joined soon after
by her new partner, Steve Mellor.
Cherie and Steve later moved to Awanui and
then to Whangarei. They had two daughters together. There is some dispute over
how
good a relationship Cherie and Steve really had with Cecil and Glennys.
However, like Glenda, Cherie became closer to her parents
after her father
became ill. I found Cherie to be a generally honest witness but her portrayal
of some things was not completely
accurate. As I come to later, on some aspects
I prefer the evidence of other witnesses over hers.
[12] Although all the children gave their father the usual assistance with farm chores when they lived at home, it was Brett who, both as a child and young adult, spent the most time working on the farm. When he left school he did fencing work for a time and then joined the army, initially as a Territorial soldier and later in the Regular Force. His parents approved of and encouraged his career choice. By 1998
Brett had attained the rank of sergeant and held qualifications as an
electronic technician. At every leave, however, he returned
to the farm to
help his father; Cecil’s farm diaries scrupulously record these visits and
the work that Brett (sometimes assisted
by Neil) did on the farm.
[13] In comparison with his mother, I suspect that no-one has ever described Brett as gregarious. He presents as very much in control of his emotions and having rather rigid attitudes. I thought he could be pedantic and this probably contributed to his later falling out with Neil and Cherie over the administration of Glennys’ estate. My impression of Brett was of a man who understands and respects hard work and has no patience for those with a lesser work ethic. Brett gave evidence, not disputed, that apart from a couple of days off to attend the Mystery Creek Field Days, he has
worked every day from the time he joined the Army. I have no doubt that many
of Brett’s attitudes and characteristics reflect
both his upbringing and
his years of Army discipline.
[14] I found Brett to be a generally credible and reliable witness.
Events and contemporaneous documents supported many of his
assertions. Where
extraneous evidence was not available I have felt sufficiently confident
to accept Brett’s evidence
because of the overall consistency of his
account both internally and with other witnesses whose evidence I
accept.
[15] Neil, the youngest, went to Waikato University and qualified
as a town planner. While he was there he developed
an interest in target
shooting, which led to him shooting competitively, an activity in which he had
considerable success. Sometimes
Neil returned to help on the farm while he was
at university and some holidays he worked or competed in sports events. After
qualifying
Neil worked for a time in New Zealand, then travelled and worked in
Singapore, where he met and married his wife, Belle, in 2000.
They returned to
New Zealand in 2001 for several years then went overseas again from 2011-2015.
They are now settled permanently
in New Zealand.
[16] Neil (and later Belle) enjoyed an easy relationship with Cecil and
Glennys and they saw one another often when Neil and Belle
lived in New Zealand.
They provided real social support, especially for Glennys following
Cecil’s death. I found Neil to be
generally honest and open. It is
evident, however, that he was unaware of his parents’ financial affairs
and, understandably,
did not have as good a grasp of matters relating to the
management of the farm as Brett. I find, too, that Neil’s perceptions
of
what his parent’s views on some things were, or were likely to be, was not
always accurate.
Brett returns to the farm
[17] In January 1998, when Brett was home on leave from the Army, his parents asked him to return to the farm permanently. Cecil had a double hernia and also needed a prostate operation but it was Glennys who first raised the issue that Cecil was struggling; Cecil was too proud to do so. After Glennys broached the idea with Brett in a general way she then spoke to Cecil, who was accepting of it.
[18] The farm was carrying a significant overdraft and Glennys and Cecil could not afford to pay a sharemilker or an employee to do the work that Cecil usually did. Cecil’s farm diaries show his increasing concern over their financial position. In early April 1998 he recorded that the overdraft was at its maximum with income expected to be down and expenses the same. The following day he noted that he had been doing forward budgeting and the overdraft “just gets worse and worse” and that
$10,000 would have to be funded either from stock sales or
something else. Although the immediate pressure was eased
by an
extension to the overdraft obtained in May 1998 it is clear that the farm was
carrying a level of debt that Cecil and
Glennys had no ready means of
clearing.
[19] When Cecil and Glennys talked to Brett in January 1998 it was clear to Brett that his returning was the only alternative if the farm was to be retained. There was no specific discussion about money but it was evident that the farm could not sustain paying him at a level even close to what he was earning in the Army (then about
$50,000 per annum). Glennys and Cecil also appreciated that by leaving the Army Brett would be leaving behind a successful career and would forfeit the substantial government contribution to his superannuation scheme to which he would have been entitled if he had remained for a further seven years; soldiers of Brett’s rank leaving the Army at that time after 20 years service were typically receiving between
$220,000 – $260,000. Brett said that his parents “assured me
that the intention was that I would receive the farm in
their wills in
recognition of my past and future contributions”.
[20] It was not until June 1998, when Brett was visiting the farm again,
that his parents disclosed their financial position in
more detail. They asked
him to advance them $50,000. Although Neil was doubtful that Cecil and Glennys
would have asked Brett
for money, I find that they did; Brett’s assertion
is supported by the evidence that he put at least that sum into the farm
within
two years of returning. Brett tried to reach an agreement about how the money
would be spent. Glennys and Cecil did not share
his views but in the end it was
agreed that Brett would spend his money where he considered it would benefit the
farm most.
[21] When Brett returned to the Army after his June visit he obtained advice from a farm accountant. The advice was that he ought to receive something in exchange
for the money he was putting into the farm and, given the size of the farm
and the equity that he had, he would be better off buying
it. This was the
context of a telephone discussion between Brett and Cecil on 25 July
1998, in which Brett proposed
that he finance the fertiliser and herd
purchases and then buy the farm from his parents within 12 months.
Cecil’s diary
notes recorded the discussion and his and Glennys’
unhappiness with it; they did not want to sell the farm at that stage.
[22] In cross-examination Mr Wood, for Neil and Cherie, characterised
Brett’s proposal as an ultimatum and an example of
Brett’s
overbearing manner. Brett explained that he was due to go on an Army exercise
on 27 July and would not be able to
be contacted until 15 August when he
was due to return to the farm permanently. He simply wished to have an
answer
before he left. I accept Brett’s explanation. Although the diary
entry could be read as the plaintiffs suggest, when Brett’s
proposal is
considered in context, I am satisfied that it was undiplomatic rather than
threatening.
Brett farms with his parents: 1999 - 2011
[23] Brett’s role was described in evidence as a “de facto
sharemilker”. He took a share of the profits (around
27 per cent) and
built up his own herd, as would an ordinary sharemilker. But, unlike a
sharemilker, he also contributed towards
farm expenses such as fertiliser. A
typical sharemilking agreement would see the sharemilker take 29 per cent of the
profits and
not contribute to farm expenses.
[24] There was no written agreement as to the terms on which Brett would put money into the farm and work on it. He had been advised to have a written agreement and raised that issue with Cecil and Glennys but nothing eventuated. On Brett’s evidence it was all “on a handshake”. I accept Brett’s evidence that the agreement with his parents included him making capital contributions to the farm, which he did. He made contributions of $21,875 and $21,194 that were spent on fertiliser in 1999 and 2000 respectively and $10,270 spent in 2000 for stock food. Part of the agreement was also that, as Brett acquired his own herd, he would lease the cows to the farm at $150 per cow and would be reimbursed for losses. However, such payments were never made even though Brett did raise the issue from time to time.
[25] In 2006 Brett, Cecil and Glennys made the decision to convert the
farm from dairying to mainly dry stock. The plaintiffs
portrayed this decision
as the result of Brett simply deciding that he no longer wished to work
on the farm and they
maintained that Cecil was unhappy about it. But on
Brett’s evidence the decision was a mutual one and reflected the
increasing
difficulties in continuing to run the farm in its existing form. The
farm needed two people to run it; it was split by a public
road which meant
that two people were required for stock crossing and bisected by a stream
which presented fencing issues.
The design of the cowshed made milking slow;
milking took approximately four hours in the morning and the same again in the
evening.
Cecil was aging and the farm could not support paying a second person
to do his work. I accept that there were good reasons to
convert the farm and
that conversion was not driven by Brett’s refusal to continue working on
the farm but was recognition
by Brett, Glennys and Cecil of the practical
difficulties in continuing to run a dairy farm.
[26] The dairy herd was substantially sold and the focus of the farm
switched to rearing calves. The work required to run the
farm reduced. This
enabled Brett to take a fulltime job at Juken Nissho Ltd in Kaitaia, which he
regarded as rather a come down
after his position in the Army. Initially, he
was working 12 hour shifts and doing the milking before the beginning of
the
day shifts. That was unsustainable. Eventually, they settled into
the routine of Cecil milking alone on the day shifts with
Brett continuing to
spend weekends and holidays working on the farm. He continued to run his own
herd, now reduced in numbers.
He paid board to his parents and contributed cash
towards farm expenses.
Cecil’s death
[27] In 2010 Cecil was diagnosed with cancer. This development proved the wisdom of the conversion from dairying. Cecil was too ill to work at his usual pace and, within a short time, to work at all. The expected assistance from Pat was not forthcoming. A contractor engaged for casual work (Kelvin Marks) did not meet Brett’s standards (nor, on Brett’s account, Cecil’s). Brett managed the farm and his job at JNL substantially alone.
[28] As I have noted, Cecil’s illness brought about a softening in
his and Glennys’ relationship with Cherie and Glenda.
They offered
practical help and the emotional relationship that had been cool for so long
improved considerably. It was Cecil’s
express wish to die at home on the
farm. Neil, Belle, Glenda and Cherie worked together to enable this to happen.
Cecil died in
January 2011.
Glennys’ death
[29] Glennys inherited Cecil’s share of the farm and remained
living there with Brett. Brett continued to work in Kaitaia
and run the farm.
Glennys assisted to a limited extent. There was no other regular help. The
relationship between Brett and Glennys
during this period is the subject of the
undue influence claim which I come to later. Glennys died in October 2012
following a stroke.
The wills
The 1999 will
[30] Cecil and Glennys made new wills in 1999, clearly in response to
Brett having returned to work with them on the farm. The
precise terms of
Glennys’ 1999 will are uncertain because a page of it has been lost. It
was described in evidence as a mirror
of Cecil’s will but it cannot have
been an exact mirror because Cecil was the sole registered proprietor of the
property at
Awanui.
[31] In 1999 Cecil’s and Glennys’ estate, aside from Awanui,
comprised mainly the farm and stock. The wills also
refer to shares. The value
of the estates in 1999 is not clear, because the financial statements prior to
2006 were not produced.
I infer from the financial strain referred to in
Cecil’s 1998 diary entries that there was little or no cash or term
deposits.
[32] Cecil and Glennys left their respective shares of the “farming
partnership” and any shares they owned to Brett.
Cecil’s will left
the Awanui property to Neil and I find that Glennys’ will did likewise (in
the event of Cecil’s
death she would have inherited this property). There
were small bequests to Cherie ($10,000) and Glenda ($5,000). The four children
were to share equally in the residuary estate.
[33] Mr Wood, for Neil and Cherie, argued that the farm itself was not
included in
the phrase “farming partnership” and fell into the residuary estate on the basis that
Cecil was the sole registered proprietor of the farm. I do not accept this.
The farm accounts for later years consistently included
the farm as a
partnership asset and, in any event, Glennys would have had an equal share
in the farm as relationship property.
Further, both wills included the
statement that Brett “has received a larger share of [the] estate in
recognition of the time,
money and effort he has put into the farming
venture”. That statement only makes sense if the “farming
partnership”
included the farm itself.
[34] The wills also explained the inequality as between Brett and Neil on
the one hand and Cherie and Glenda on the other as being
because Glenda and, to
a lesser extent, Cherie, had severed contact with Cecil and Glennys.
The 2010 wills
[35] The 2010 wills recognised Cecil’s and Glennys’ improved
relationship with Cherie and Glenda. There was, however,
a significant change in
relation to Brett that suggested deterioration in that relationship. Under the
2010 wills Brett would not
inherit his parent’s respective shares in the
farm. If either one survived the other the survivor was to inherit the
other’s
share of the farm. Only if neither survived could Brett acquire
the farm but even then he was only to have the option of buying
their shares at
a 50 per cent discount. The stock was to be sold and form part of the
residuary estate. If Brett exercised the
option to purchase Neil, Cherie and
Glenda would share equally in the residuary estate. If he did not exercise the
option all four
children would share equally. Neil was to receive the Awanui
property, in addition to his share of the residuary estate.
[36] The only evidence of the value of the farm and of Awanui as at 2010 came from the 2009 financial statements, prepared nine months before the 2010 wills. They show the farm at government valuation of $655,448, Awanui at $69,694, stock
of $81,6113 and other non-current
assets4 of $208,846.
3 There were other assets, including classic cars, antiques and firearms but they did not represent a significant part of the estates and I have not referred to them in considering the overall value of the estates. The National Average Market Value (NAMV) for stock shown in the financial statements was the best available evidence of the value of the stock.
4 Cash, term deposits, accounts receivable and investments.
[37] Very broadly, if Brett had not exercised his option he, Cherie and
Glenda would have each received approximately 23 per cent
of the estate and Neil
about 30 per cent. If Brett had exercised his option to purchase the farm at
50 per cent discount he would
have received about 32 per cent of the estate,
Neil about 27 per cent and Glenda and Cherie about 20 per cent each.
The 2011 will
[38] In August 2011 Glennys made a new will under which Brett would
inherit the farm outright, together with the stock. Neil
would inherit the
Awanui property. Cherie and Glenda would share equally in the residue.
Neil’s exclusion from the residuary
estate was a marked change from both
the previous wills.
[39] Glennys’ financial statements for the period ending 31 May
2012 show the position nine months after the 2011 will was
made and, except for
the farm, includes the comparative figures for the 2011 financial year, three
months before the will was made.
Where there are comparative figures I take the
2011 figure because it is so close to the date of the will.5 The
farm was shown at $1,195,720. The stock value was $77,964. The other
non-current assets were $351,055. On these figures, when
Glennys made her will,
Brett would have received about 70 per cent of the estate, Neil eight per cent
and Cherie and Glenda approximately
11 per cent each.
First cause of action: will invalid for want of knowledge and
approval
Proving knowledge and approval
[40] One of the requirements of a valid will is that the will-maker knew and approved the contents of the will.6 Glennys’ will is apparently validly executed; her signature was properly witnessed and there is no suggestion that she lacked capacity. Her knowledge and approval of the contents is put in issue as a result of differences between that will and the 2010 will and evidence that Glennys had been distressed
during the period leading up to the execution of the
will.
5 The date of the will is relevant for this aspect of my discussion. Later, in relation to the Family
Protection claim, I consider the value of the estate at the date of Glennys’ death.
6 Guardhouse v Blackburn (1866) L.R.1 P&D 109, [1861-73] All ER Rep 680; Re Whyte
(deceased) [1969] NZLR 519 at 520.
[41] The onus of proving that the will-maker knew and approved the
contents of the will lies with the party propounding the will.
This rule was
stated by the Judicial Committee in Barry v Butlin: 7
The rules of law according to which cases of this nature are to be decided,
do not admit of any dispute, so far as they are necessary
to the determination
of the present Appeal: and they have been acquiesced in on both sides. These
rules are two; the first is that
the onus probandi lies in every case
upon the party propounding a Will; and he must satisfy the conscience of the
Court that the instrument so propounded
is the last Will of a free and capable
Testator.
The second is, that if a party writes or prepares a will, under which he
takes a benefit, that is a circumstance that ought generally
to excite the
suspicion of the Court and calls upon it to be vigilant and jealous in examining
the evidence in support of the instrument,
in favour of which it ought not to
pronounce unless the suspicion is removed, and it is judicially satisfied that
the paper propounded
does express the true Will of the deceased.
[42] Many of the cases in which the rule in Barry v Butlin has
been applied concern wills in which the person instrumental in the preparation
of the will (or someone related to them) benefited
under the will. But the rule
applies more widely. In Tyrrell v Painton Lindley LJ referred to the rule
in Barry v Butlin (and to the subsequent cases of Fulton v
Andrew8 and Brown v Fisher9) and
said:10
The rule in Barry v Butlin ... is not, in my opinion, confined to the
single case in which a will is prepared by or on the instructions of the person
taking
large benefits under it, but extends to all cases in which circumstances
exist which excite the suspicion of the Court; and wherever
such circumstances
exist, and whatever their nature may be, it is for those who propound the will
to remove such suspicion affirmatively
that the testator knew and approved of
the contents of the document, and it is only where this is done that the onus
is thrown
on those who oppose the will to prove fraud or undue
influence or whatever else they rely on to displace the case from
proving the
will.
[43] The Court of Appeal cited that passage with approval in Howie v Chatterton11 and also referred to it in Tanner v Public Trustee.12 Although Tyrrell and Tanner both concerned beneficiaries who were related to the party instrumental in preparing the will it is clear that the circumstances that might “excite the suspicion of the
Court” are not limited to that situation. In the Estate of
Fuld (deceased) (No 3)
7 Barry v Butlin [1838] EngR 1056; (1838) 2 Moo PC 480, 12 ER 1089 (PC) at 482-483.
8 Fulton v Andrew Law (1875) LR 7 448 (HL).
9 Brown v Fisher (1890) 63 LT 465.
10 Tyrell v Painton [1891-94] All ER Rep 1120 (CA) at 1122.
11 Howie v Chatterton [1926] NZLR 595 (SC) at 601.
12 Tanner v Public Trustee [1973] 1 NZLR 68 (CA) at 73.
Hartley v Fuld (the Attorney-General intervening)13
Scarman J (as he then was) described the rule stated in Barry v Butlin
as an evidential one, concerned with the approach required of the Court to
the evidence submitted for its consideration:
In the ordinary case proof of testamentary capacity and due
execution suffices to establish knowledge and approval but in
certain
circumstances the Court is to require further affirmative evidence. The
character of the rule as evidential emerges clearly
from the speeches of
Viscount Simonds and of Lord Reid ([1959] 1 All ER at pp 557, 558) (Viscount
Simonds), 560, 561 (Lord Reid).
Both their Lordships relied strongly on the
classical statement of the rule to be found in the judgment of Barren Parke in
Barry v Butlin.
...
It is sufficient now to indicate that it is a rule which in certain cases
requires of the Court vigilant care and circumspection in
investigating the
facts of the case. It is a rule which calls on the court not to grant probate
without full and entire satisfaction
that the instrument did express the real
intentions of the deceased.
[44] The character and application of the rule has been considered more
recently in Gill v Woodall.14 That case, like the present,
concerned proceedings brought for the revocation of a grant of probate and did
not involve a beneficiary
who had been instrumental in the preparation of the
will.
[45] Lord Neuberger also cautioned that, for public policy reasons, the
courts are slow to accept that an apparently validly executed
will is not in
fact valid:15
There is also a policy argument ... which reinforces the proposition that a
court should be very cautious about accepting a contention
that a will executed
in such circumstances is open to challenge. Wills frequently give rise to
feelings of disappointment or worse
on the part of relatives and other would-be
beneficiaries. Human nature being what it is, such people will often be able
to find
evidence, or to persuade themselves that evidence exists, which shows
that the will did not, could not, or was unlikely to, represent
the intention of
the testatrix, or that the testatrix was in some way mentally affected so as to
cast doubt on the will. If judges
were too ready to accept such contentions, it
would risk undermining what may be regarded as a fundamental principle of
English law,
namely that people should in general be free to leave their
property as they choose and it would run the danger of encouraging people
to
contest wills, which could result in many estates being diminished by
substantial legal costs.
Further, such disputes will almost always arise when the desires, personality
and state of mind of the central character, namely the
testatrix herself,
cannot
13 Estate of Fuld (deceased) (No 3), Hartley v Fuld [1965] 3 All ER 776 (QB) at 781.
14 Gill v Woodall [2010] EWCA Civ 1430, [2011] Ch 380 (CA).
15 Gill v Woodall, above n 14, at [16].
be examined other than in a second-hand way, and where much of the useful
potential second-hand evidence will often be
partisan, and will
be unavailable or far less reliable due to the passage of time.
[46] Returning to the application of the rule in Barry v Butlin, the Judge addressed the correct approach to the assessment of evidence and discharge of the onus of showing knowledge and approval. Notwithstanding the previous cases in which proof of knowledge and approval had been approached on the basis of a
presumption,16 Lord Neuberger expressed doubt about determining
the matter in that
way. He noted that the first instant Judge had approached the issue on a two-stage basis involving the finding of facts to “excite the suspicion of the Court” or establish a prima facie case that the testatrix did not know of and approve the contents of the will and, secondly, considering whether those suspicions were allayed but said:17
Where a Judge has heard evidence of fact and expert opinion over a period of
many days relating to the character and state of mind
and likely desires of the
testatrix and the circumstances in which the will was drafted and
executed and other relevant
matters, the value of such a two-stage process to
decide in the issue of the testatrix’s knowledge and approval appears to
me to be questionable. In my view the approach which would, at least generally,
be better to adopt is that summarised by Sachs J
in the unreported case of
Crerar v Crerar, cited and followed by Late J in Morris [1971] p
62, 78 E – J, namely that the Court should:
Consider all the relevant evidence available and then, drawing such
inferences as it can from the totality of that material, it has
come to a
conclusion whether or not those propounding the will have
discharged the burden of establishing that the
testatrix knew and approved the
contents of the document which is put forward as a valid testamentary
disposition. The fact that
the testatrix read the document, and the fact that
she executed it, must be given the full weight apposite in the circumstances,
but in law those facts are not conclusive, nor do they raise a
presumption.
[47] And later, the Judge returned to this point,
observing:18
It may well be that, if the Judge had approached the question of knowledge
and approval as a single issue, rather than dividing it
up into two issues, he
would have reached the right conclusion. Particularly in a case with a large
number of witnesses, heard over
many days, it does not seem to me wise to
consider an issue in two stages, when both stages ultimately involve the same
question,
namely, given the effect of the factual and expert evidence, did Mrs
Gill appreciate what was in the will when she signed it?
16 Fulton v Andrew; Fuller v Strum [2001] EWCA Civ 1879, [2002] 1 WRL 1097 (CA) at [33];
Perrins v Holland [2010] EWCA Civ 840 at [28], [2011] Ch 270.
17 Gill v Woodall, above n 14, at [22].
18 At [64].
[48] I respectfully consider that the approach described by Lord
Neuberger must be right in a case where both parties have called
evidence. The
alternative would be unwieldy and a barrier to the cohesive assessment of the
evidence. In particular, it is unnecessary
to consider whether the plaintiffs
have raised a prima facie case or whether there is a rebuttable presumption.
The onus of showing
that Glennys appreciated what was in the will when she
signed it lies with the party propounding the will (technically, the executors,
but in reality Brett). It is for me to consider all of the evidence relevant to
this issue and decide whether I am satisfied that
the onus has been
discharged.
Did Glennys know and approve the contents of the 2011 will?
[49] Execution of the 2011 will was preceded by several previous discussions between Glennys and the legal executive who prepared the will, Christine Buckby. These discussions are relevant to the issue of undue influence and I discuss them in more detail later. It is sufficient to say at this stage that in May 2011 Glennys instructed Mrs Buckby to re-draft her will so that the discount to Brett on purchasing the farm would increase from 50 per cent to 70 per cent. On 3 June she told Mrs Buckby she wanted to make further changes. On 9 June she saw Mrs Buckby in
a distressed state but appears not to have discussed the
will.19
[50] On 7 July she gave Mrs Buckby a marked up copy of the draft will. One of the changes was that Brett would inherit the farm and stock outright. Mrs Buckby counselled Glennys to reconsider, pointing out the significant departure from the
2010 will. But Glennys wanted to make the changes. Mrs Buckby re-drafted
the will and sent it to Glennys.
[51] Glennys executed the will in Mrs Buckby’s office on 12 August 2011. Mrs Buckby’s recollection was that this meeting lasted 20-25 minutes. She was satisfied that Glennys understood the concept and the consequences of unequal division. She did not explain every clause because Glennys had already read the draft and Mrs Buckby was satisfied that she understood the clauses contained in it.
She asked Glennys twice to reconsider signing the will because of the
apparent
departure from what she and Cecil had
agreed in 2010, but Glennys proceeded to execute it.
[52] Mrs Buckby made a file note of that attendance that
recorded:
She [Glennys] was really upset and had had a bad week. I disc the unequal sharing of the estate again.
Said she did not want to change anything again.
Was so sick of always been [sic] criticised by Brett – nothing she ever
did was right. Would probably move into town eventually.
Asked her twice to
reconsider signing.
Said she would go with it and intended to talk to Neil about it. Talked
about stock again.
She signed the will and then said she needed to do it this way to keep the
peace at home and felt she couldn’t do anything else!!!
Told her to call in @ any time if she needed someone to talk to.
[53] Looking at the totality of the evidence there can be no doubt that
Glennys knew and approved the contents of her 2011
will. It is true
that there were significant changes from the 2010 will and that Glennys
appeared to Mrs Buckby to have been
somewhat distressed. But those are matters
that properly arise in relation to undue influence; Mrs Buckby’s evidence
is incontrovertible
that Glennys knew exactly what the will provided for and,
even in the face of obvious disapproval, was determined to execute it.
In these
circumstances, there is simply no basis on which to conclude that Glennys did
not fully appreciate what was in her will
when she executed it.
Second cause of action: undue influence
[54] The plaintiffs’ case on undue influence rests on two main planks. The first is the difference between the 2010 and 2011 wills, namely that Brett became the major beneficiary of Glennys’ estate and Neil no longer shared in the residuary estate. The second is Brett’s behaviour towards Glennys. The plaintiffs sought to show Glennys as vulnerable by reason of age, recent widowhood, social isolation and dependence on Brett to run the farm and to portray Brett as overbearing and boorish, a man with a confrontational personality who intimidated his mother and had an unjustified sense of entitlement to the farm.
Relevant principles
[55] The concept of undue influence in the context of a will is directed
towards the requirement that a valid will represent the
will maker’s free
intention.20 That is not to say that a will maker must be free of
all influence. The distinction between influence that does not undermine
the validity of the will and influence to be regarded as undue such as
to invalidate a will is described in Hall v Hall:21
To make a good will a man must be a free agent. But all influences are not
unlawful. Persuasion, appeals to the affections or
ties of kindred, to a
sentiment of gratitude for past services, or pity for future destitution, or the
like, – these are
all legitimate, and may be fairly pressed on a testator.
On the other hand, pressure of whatever character, whether acting on the
fears
or the hopes, if so exerted as to overpower the volition without convincing the
judgment, is a species of restraint under which
no valid will can be made.
Importunity or threats, such as the testator has not the courage to resist,
moral command asserted and
yielded to for the sake of peace and quiet, or of
escaping from distress of mind or social discomfort, these, if carried to a
degree
in which the free play of the testator’s judgment, discretion or
wishes is overborne, will constitute undue influence, though
no force is either
used or threatened. In a word, a testator may be led but not driven; and his
will must be the offspring of his
own volition and not the record of someone
else’s.
[56] And to like effect, in Craig v Lamoureux it was
said:22
Undue influence, in order to render a will void, must be an influence that
can justly be described by a person looking at the matter
judicially to have
caused the execution of a paper pretending to express a testator’s mind,
but which really does not express
his mind, but something else which he did not
really mean.
[57] The burden of proving undue influence lies on the party asserting it
(in this case Neil and Cherie).23 This requires not only
establishing that a person had the power to unduly overbear the
testator’s will but that this
power was actually exercised and the
will obtained by that means.24
[58] I note here that both counsel referred in submissions to presumed
undue influence arising from a relationship that gives
rise to a presumption of
trust and
NZLR 661 (CA) at 668-669. See also Hogan v Commercial Factors Ltd [2004] BCL 1118 (CA).
21 Hall v Hall (1868) LR1 P&D 481.
22 Craig v Lamoureux [1920] AC 349 (PC) at 357, citing Wingrove v Wingrove (1885) 11 PD 81;
Baudains v Richardson [1906] AC 169.
23 Carey v Norton above n 20, at 673.
24 Craig v Lamoureux, above n 22, at 357.
confidence and a transaction calling for explanation in the light of that
relationship.25
Mr Wood made it clear in his reply submission that he was asserting an actual
relationship of trust and confidence but for clarity
I note that, in the context
of a will, as opposed to an inter vivos gift or a commercial transaction, no
presumption arises. That
is clear from Craig v Lamoureux and Carey v
Norton.
General observations
[59] I indicate now that I have only considered the specific aspects of
behaviour that were alleged. There was evidence that
hinted at bad behaviour
such as Glennys tending to tell whoever telephoned whether Brett was in the
house or out at work. I decline
to draw any inference from such evidence that
Brett was intimidating his mother. Despite what they might say now, neither
Neil
nor Cherie ever felt sufficiently worried to actually tackle Brett about
their concerns and the lack of specificity means there is
no evidential
foundation for drawing the kind of inference that was invited.
[60] I note, too, that I have not included in my discussion every
specific complaint the parties made against one another. As
is to be expected in
a case of this kind there have been numerous incidents that the parties related
as putting the other in a bad
light. I have considered all this evidence but
keeping this decision a manageable length means that it has not been possible to
address every piece of evidence specifically.
[61] Finally, I place only limited weight on Mr Marks’ evidence. Mr Marks did casual work on the farm between 2010 and 2012. Although he knew Neil socially, he was previously unacquainted with Cecil and Glennys. Nevertheless, he claimed to have known the family “very well”, especially Glennys. He acknowledged that he did not have much of a relationship with Brett; it was obvious that Brett held Mr Marks in low regard and Mr Marks knew that and, I suspect, felt somewhat resentful about it. Even after he was no longer engaged on the farm Mr Marks would visit Glennys from time to time to see how she was. But I consider that Mr Marks overstated his relationship with the Mumby family. Much of his evidence
was inference drawn from unspecified complaints by Glennys or from complaints
that, as I discuss later, are not substantiated.
Neil’s exclusion from the residuary estate
[62] I deal with this aspect first because I see no merit in it and can resolve it briefly. Mr Woods submitted that Brett was irrationally jealous of Neil and that Neil’s exclusion from the residuary estate was an indication of Brett’s influence over Glennys. Mr Wood relied heavily on the decision in Schrader v Schrader26 which concerned an elderly testatrix living with one of her sons who was found to have unduly influenced his mother to favour him over his brother, whom he hated. He
invited me to find parallels between that case and the present case. I
decline to do so.
[63] Brett openly acknowledged that he disliked Neil because, in his
view, Neil was selfish and self-centred. He went on to identify
particular
reasons for holding that view, namely his perception that Neil had not helped
Cecil and Glennys sufficiently and that
he had expected financial assistance
from his parents. Brett clearly judged others by his own extraordinary work
ethic (which,
it seems, he inherited from Cecil). So it is understandable that
he might hold those views even if they were not justified. But
I saw no
evidence of irrationality much less anything so strong that it would have led
him to pressure Glennys into a will that specifically
disadvantaged
Neil.
[64] In some ways Awanui was a more secure legacy because, over time (it being unknown when Glennys would die) the residuary estate, which comprised mainly cash, might have been reduced or used up altogether. Furthermore, the evidence seemed consistent that Neil was always to have Awanui and if Glennys had wished to treat Neil, Cherie and Glenda similarly, leaving Awanui to Neil and the cash to Cherie and Glenda would broadly have achieved that result. However, I have been unable to reach any firm conclusion as to why Glennys excluded Neil from the residuary estate.
Brett inherits the farm and stock
[65] The plaintiffs argue that the difference between the 2010 and 2011
wills in relation to Brett is so stark as to invite the
inference that Glennys
was unduly influenced in making it.
[66] It is evident that the 1999 wills had recognised Brett’s cash
contribution to the farm, the sacrifice that he made
in giving up his army
career to return to the farm and the expected effort that he would make on an
ongoing basis in working on the
farm. It would have been obvious that Brett
would have to shoulder any significant part of the physical work on the farm
both in
the near future (given Cecil’s health problems) and in the longer
term (given Cecil’s age).
[67] Mr Wood submitted that in 2010 these factors no longer existed to any significant extent because Brett had chosen not to remain working on the farm after
2006. He argued that the 2010 wills reflected Cecil and Glennys’ view
that Brett no longer deserved to inherit the entire farm
and that the wills
showed a falling out between him and his parents.
[68] The only evidence on this point came from Mrs Buckby. She made a
file note recording the instructions she received: Cecil
wanted to recognise the
work and money that Brett had put into the farm through leaving him an option to
purchase at a 50 per cent
discount but did not want to gift the farm to Brett.
There was no mention of Cecil being disappointed or angry that Brett was no
longer working on the farm but Mrs Buckby had noted that Cecil said that he was
unhappy with the way Brett treated Glennys sometimes
– rude and
disrespectful. In her evidence Mrs Buckby went further, saying that it was
clear from the instructions
as well as discussions with Cecil and Glennys that
they had had a falling out with Brett, that Cecil did not want to go into
specific
details as to the reasons for the breakdown in the relationship, but
alluded to the fact that he had not been happy with the way
Brett had behaved
towards Glennys in recent times. Cecil gave her the impression that Brett had
been rude to and bullied his mother.
[69] Later I express reservations about the reliability of Mrs Buckby’s evidence in relation to another topic. At this stage I observe only that Mrs Buckby’s evidence, and the contents of her file notes on this and other matters sometimes reflected
inferences that she had drawn rather than being a bare record of what Cecil
or Glennys had said. The reference to Brett bullying
Glennys is an example;
there was no evidence that this is what Cecil said and it was an inference that
was not available on the statements
that Mrs Buckby had recorded in her file
note.
[70] In another part of her evidence Mrs Buckby reported Cecil as saying
that his main concern was how the farm would be managed
after his death; he
wanted to ensure that Glennys would still have control. This evidence is
consistent with comments that
Cecil had made to Neil about being unhappy with
Brett’s behaviour and his attitudes to farm management. It is consistent
with
comments that Glennys made to Neil that Cecil’s motivation for
changing his will was concern that Glennys would not be able
to
“manage” Brett. It is consistent with a comment that Glennys made
to Cherie that she and Cecil had changed
their wills because of
Brett’s offensive behaviour towards them, especially towards her and that
Cecil was really concerned
about him bullying her and thought she would find him
impossible to manage if he was not there. Finally, it is also consistent with
the persistent level of disagreement between Brett and his parents over the
amount of money being spent on the farm, with Brett concerned
that Cecil and
Glennys were not spending enough.
[71] It seems unlikely that Brett’s rudeness was the reason
for the change; whatever the behaviour was that so
upset Cecil and Glennys,
things never got to the point of them asking Neil or Cherie to speak to Brett,
nor of Neil and Cherie
becoming sufficiently concerned to do so. I am
satisfied that Cecil was more concerned that if Brett were an equal partner
with his mother he would seek to impose his views in terms of farm
management.
[72] The terms of Cecil’s will were disclosed at a meeting on 28 January 2011 at the offices of Patterson Law. Present were Glennys, Neil, Brett and Mrs Buckby. Brett said words to the effect that the terms of the will were not what were intended. There was a dispute about whether (as he claims) he spoke those words quietly and without emotion or whether (as Neil and Mrs Buckby recall) he appeared agitated and angry. For present purposes I do not think that matters particularly. More significantly, it is agreed that Glennys told Brett that they would talk about it when they got home and, on Brett’s evidence, they did have a conversation about the contents of Cecil’s will.
[73] About a month after the reading of Cecil’s will, Brett asked
Glennys why the wills had been changed. She alluded to
the risk of a challenge
to the will by Glenda because of the value of the farm. I have no reason to
doubt Brett’s evidence
on this point but nor do I accept that Glenda made
any such statement. It is more likely that Glennys did not want to give Brett
the true reason for the changes. I note at this point that Glennys was not
always truthful or consistent in what she said, during
this period at least.
As a result, I am cautious about accepting all of the statements Glennys is
reported to have made. I have
placed weight on statements that accord with
other external evidence or are consistent with other statements Glennys made.
Otherwise
I put limited weight on them.
[74] According to Brett, Glennys also said that her and Cecil’s
intentions had been to ensure an unequal distribution in
his favour to recognise
his work and financial contributions and that Glennys was “appalled”
when she realised that he
would not have been able to raise sufficient funds to
purchase the farm with the result that he would simply share in the residuary
estate with his three siblings. There was no challenge to Brett’s
assertion that he would have been unable to buy the farm
even at a 50 per cent
discount. His view is supported by the plaintiffs’ valuation of the farm
which described it as one that
would, in general terms, be regarded as
uneconomic if normal debt loadings, farm maintenance costs and living expenses
were taken
into account.
[75] If Brett’s recollection of the timing of his conversation with Glennys is correct it would have occurred about sometime March 2011. On 18 May 2011
Glennys called in to see Mrs Buckby without an appointment. Mrs
Buckby’s file note recorded that Glennys was happy and excited
about
having bought a new car and feeling better after the shock of losing Cecil. She
was “starting to get a handle on things
[and] wanted to talk about
updating Will and could she make some changes”. One of the changes
that she wanted to
make was to increase the discount on the option left to Brett
to buy the farm from 50 per cent to 70 per cent and also to leave all
the stock
to him. Mrs Buckby recorded that Glennys “stated B has done a lot of work
on farm over years”.
[76] Mrs Buckby prepared a draft of the new will and Glennys came in
again on
3 June 2011. Mrs Buckby’s file note suggests that Glennys was in good spirits on
that day. She did not execute the new will because she said she wanted to
make some further changes. She made an appointment for
9 June.
[77] On 9 June Glennys was at Mrs Buckby’s office for a little over
an hour. Mrs Buckby recalled Glennys being very distressed
and made a file note
of the meeting. Although the purpose of the meeting was for Glennys to give Mrs
Buckby further instructions
about her will, there was no record of any
discussion about that. Instead, Mrs Buckby recorded Glennys as saying, amongst
other things,
that Brett was very difficult to live with, that he had been angry
and furious over Cecil’s will, kept ranting about it and
that she needed
to “keep the peace at home”. Glennys called Brett all sorts of
names including being stubborn and pigheaded.
Mrs Buckby recorded Glennys as
saying that she wanted to sell the farm but that Brett had told her that she
would get only $700,000
- $800,000 for it. At the end of the file note Mrs
Buckby recorded her opinion: “clearly abuse and manipulation going on at
home”.
[78] I note here that Glennys had talked to other people about selling
the farm. Neil, Kelvin Marks and Tanya Travis (a previous
girlfriend of
Brett’s) all said she had expressed a wish to move. I find that Glennys
did have a desire to move off the farm,
which probably had become a lonely place
for her with Cecil gone and Brett at work most days. However, she did not tell
Brett that
she wanted to move. Brett said that Glennys never talked to him
about selling the farm, nor was there any discussion between him
and his mother
about how long he could continue managing the farm and working. He had the
impression that Glennys observed him for
a few months and by the middle of the
year was satisfied that he could cope alone. Since there was not enough money
to pay for help,
if he could not run it alone the only option would have been to
sell it. The only comment Glennys made about the farm (apart from
day-to-day
matters) was that she had not realised how important the farm had been to
Cecil.
[79] Glennys went back to see Mrs Buckby in July 2011. She told Mrs Buckby that she wanted to make changes to the draft will to leave everything to Brett including the stock. Glennys had with her a copy of the draft will. It was marked with ticks and crosses, which Mrs Buckby assumed (but did not confirm) had been
made by Glennys herself. Brett denies marking up the draft or knowing
anything
about Glennys’s will and I accept his evidence.
[80] In addition to the marked up draft Glennys gave Mrs Buckby a
typewritten note of clauses to replace clauses 3(a) and 12
in the draft and a
new clause which Mrs Buckby noted as being “re farm staying in family for
next generation and that kids
had reassured her this was what they
wanted”. This clause is notable because it is quite obviously untrue. I
am satisfied
that none of Glennys’ children had talked to her about
keeping the farm in the family for another generation.
In the
circumstances, I infer that Glennys had drafted the clause for the
purpose of deflecting any criticism from
Mrs Buckby about the changes she
wanted to make.
[81] Mrs Buckby recorded in her file note dated 7 July 2011 a discussion
about what would happen to the farm after Brett’s
death, given that he was
not married and had no children. She asked Glennys to reconsider what she was
proposing, given the difference
between the proposed changes and the 2010 will.
In her oral evidence she elaborated, saying that she made Glennys aware of what
could possibly happen if the estate was left to one child and the other children
did not receive an equal share.
[82] Mrs Buckby revised the draft will in accordance with the
instructions that Glennys had given and emailed it to Glennys.
On 27 July 2011
Glennys called into the office to have her passport photocopied. She was in
good spirits. She returned on 12 August
2011 and executed the 2011 will in the
circumstances I have already described, with Mrs Buckby twice asking her to
reconsider.27 Mrs Buckby’s file note records Glennys as
saying that she needed to sign the will to keep the peace at home and felt that
she
could not do anything else.
[83] The plaintiffs, understandably, rely heavily on Mrs Buckby’s
evidence as showing that Glennys was under pressure from
Brett to change her
will in his favour and that she was capitulating in order to keep the peace with
him. The evidence would be
compelling, were it not for the evidence of Lois
Simpson.
[84] Mrs Simpson and her husband, Russell, had been friends of Glennys
and
Cecil since 1961. They kept in regular contact over that time and had
driven from
27 At [51].
their home in Opunake to attend the function held in 2011 for Cecil’s
birthday and Cecil and Glennys’ 49th wedding anniversary. Mrs
Simpson and Glennys talked at length on the phone regularly. Mrs Simpson gave
the following evidence:
Glennys talked to me several times about the woman from her Lawyer’s
office, Mrs Buckby. Glennys told me she did not
think much of Mrs
Buckby. She found her very argumentative and antagonistic to deal with. She
frustrated Glennys because she
would not listen to what Glennys had to say.
Glennys told me that Mrs Buckby twisted things that Glennys said to her.
Glennys told
me she disliked Mrs Buckby and disliked having to visit her to
discuss things because of her attitude and she did not seem to know
what she was
doing.
[85] The cross-examination on this point included the
following:
Q: She says you say that she did not think much of Mrs Buckby, she
found her argumentative and antagonistic to deal with.
Did she explain what
she was concerning her?
A: No she just said that she just couldn’t sort of get
on with Mrs Buckby, that was – and she didn’t
listen to her, what
Glennys had to say and quite often she was in tears.
Q: Would you just pause and consider that for a moment. Did she tell
you what she was in tears about, what made her cry?
A: No she just said that she just frustrated her and I guess after – at that
time Cec hadn’t long passed away and she was upset.
Q: Was she upset generally at that time? A: No not all the time ...
Q: But you said she was crying. Now at what points are you aware
that she was crying? Was it because she had been to see
Mrs Buckby or in that
office or was it out –
A: It was while she was in that office ...
Q: ... You said that when Glennys saw Mrs Buckby she said she tended
to get upset or that she twisted things etc, correct?
A: She just, yeah, she just said she frustrated her and she couldn’t get
on with her.
[86] Lois Simpson also said that Glennys told her about how Brett had helped out on the farm and that they could not pay him but as he was the only one interested in farming and had helped her and Cecil when they were in need, the farm would be his. She was not cross-examined on this evidence.
[87] Mrs Simpson’s credibility was not in doubt and the
reliability of her recollection of these conversations
was not challenged (the
cross-examination being directed towards whether Glennys was generally upset
following Cecil’s death).
Mrs Simpson had known Glennys for 50 years. She
spoke with Glennys regularly and at length. Clearly, Mrs Simpson was someone
whom
Glennys trusted to speak about a matter which she did not mention to any
family member.
[88] I do not doubt Mrs Buckby’s honesty but Mrs Simpson’s
evidence makes me cautious about accepting that her file
notes and recollections
reflect exactly what Glennys was trying to convey. I may have been less
doubtful if there were other reported
statements by Glennys consistent with
those recorded by Mrs Buckby but there were not. Neil, Cherie, Belle and Mr
Marks all gave
evidence of their impression that Glennys was under pressure from
Brett but, on analysis, the only specific complaints related
to the issue
of smoking, Brett wanting to bring a girlfriend to live in the farm house
(which I come to later) and Brett’s
moodiness. Given that Neil and Belle
lived nearby and saw Glennys reasonably often, I am satisfied that Glennys would
have said something
to them if there had been a specific complaint to
make.
[89] Glennys also told Glenda that she was leaving the farm to Brett
because Brett had done so much work on the farm and because
he was the only one
interested in the farm, the farm would go to him.
[90] I place weight on the statements that Glennys made to Mrs Simpson
and to Glenda because they were consistent, made to both
a family member and
someone outside the immediate family and objectively rational; it was
indisputable that Brett had helped Glennys
and Cecil when they were in need of
help, had worked hard on the farm, that they had been unable to pay him
adequately and that none
of the other children were interested in the farm. All
of these were legitimate factors for her to take into account in making her
will.
[91] It is true that the 2011 will departed from what Glennys and Cecil had done in 2010. But I do not place significant weight on that fact for two reasons. First, Mrs Buckby’s file note and oral evidence suggested that it was Cecil who gave the instructions regarding the 2010 wills and Glennys agreed with him. The file note of
that meeting makes no reference to Glennys herself giving instructions.
Secondly, a lot changed for Glennys after Cecil died, including
the realisation
that Brett would not be able to buy out his siblings with the result that the
farm would be sold. That was not what
either Cecil or Glennys had wanted and
would have gone against the assurances they had given Brett when he agreed to
return to the
farm in 1998. It is not so unusual to find a woman in
Glennys’ position reassessing her view of things.
[92] I accept that Glennys was distressed when she visited Mrs Buckby on
9 June
2011. But I am not satisfied that her distress was evidence of “abuse
and manipulation” as Mrs Buckby perceived. Looking
at the evidence
overall I think it more likely than not that Glennys was thinking about selling
the farm and moving into town but
knew that doing so would preclude Brett
ultimately acquiring the farm, which had always been her and Cecil’s
intention. After
the discussion with Brett about the impossibility of him
buying the farm it must have been obvious that this could only happen if
he
inherited it.
Bad behaviour: Brett’s reaction to Glennys smoking
[93] As evidence of Brett’s overbearing conduct Neil and Cherie
asserted that he
had taken to spitting in the house whenever Glennys smoked. Brett denied
this.
[94] Cherie gave evidence that Glennys had complained of Brett spitting
in the house and said that on one occasion she saw Glennys
light a cigarette and
Brett “came rushing out of his bedroom, making a squeaky cough”.
She did not, however, see him
actually spit. The only witness who claimed to
have seen this kind of behaviour was Belle. She said that Glennys had told her
that Brett had taken to coughing and spitting in the house when she lit a
cigarette and that on one occasion when she was there both
she and Glennys had
lit cigarettes in the lounge. Brett emerged from his bedroom “coughed
loudly spat on the floor then exited
the house”.
[95] It was accepted that Brett suffered from a form of arrhythmia that caused palpitations and coughing. His doctor had advised him to avoid cigarette smoke. This evidence was unchallenged and is supported by Cecil’s entry in the farm diary on 13 November 2010:
Brett tossed a curly one, his Doctor has diagnosed him with arrhythmia,
irregular heart beat caused by cigarette smoke. And the Doctor
says there
should be a “smoke free” set aside for him in our house.
[96] Glennys smoked about 40 cigarettes a day, usually sitting in the
lounge. Brett disliked the cigarette smoke both because
of his own
condition and because following his father’s diagnosis of bladder cancer
he learned that a major cause of
bladder cancer is cigarette smoke and his
father was a non-smoker.
[97] Clearly, however, any concession to Brett’s condition was
reluctantly made. Brett said that his request for a smoke-free
area “did
not go down well”. Glennys did not want to stop smoking inside and while
Cecil was alive she continued to
do so. It is possible that Brett spat on the
floor but given that only one witness (Belle) actually witnessed it, I am not
prepared
to make a finding that this is something that happened to any
significant extent. Either Belle was not sufficiently concerned to
tell Neil
or, if she did, Neil was not sufficiently concerned to actually speak to Brett
about the matter.
[98] After Cecil’s death it appears that Brett’s objection
prevailed. Belle gave evidence of Glennys smoking outside
after Cecil died.
This was portrayed as heartless behaviour by Brett and a form of bullying of his
mother. I do not accept that.
Given Brett’s genuine medical condition,
insisting that Glennys smoke outside could hardly be viewed as unreasonable,
much
less bullying. I do find it curious, however, that Brett’s
condition did not engender any level of sympathy from his parents
or from Neil
and Cherie.
Bad behaviour: nagging Glennys to move out
[99] I turn next to the claim that Brett nagged Glennys to move into the farm cottage so that he could live in the farmhouse with a girlfriend. Neil said that sometime in 2011 Glennys told him that Brett had asked her to move into the farm cottage so that he could have his girlfriend live with him in the farmhouse. Cherie said that during a phone call to her mother sometime in 2012 Glennys said that “Brett was nagging her about his girlfriend, Tanya [Travis], moving into the farmhouse”. Kelvin Marks said that Glennys had complained to him that Brett had demanded that she move to the farm cottage so that he could bring his girlfriend into the house.
[100] Brett denied ever suggesting to his mother that she move into
the farm cottage. Indeed, for most of the time the
farm cottage was rented out
to provide a much needed additional income for the farm. Brett gave
unchallenged evidence that he was
not in a relationship at all during the
relevant period. Ms Travis confirmed that there was no ongoing relationship
between her
and Brett during the relevant period.
[101] In light of Ms Travis’ evidence, this aspect of the
plaintiffs’ case was effectively abandoned in closing,
with Mr Wood
submitting that the plaintiffs were doing no more than relying on what they were
told by Glennys. I accept that Glennys
did make these statements and, further,
that throughout 2011 and 2012 she showed no signs of confusion or other mental
impairment.
The evidence is therefore relevant because it is an instance
of Glennys making a complaint about Brett knowing that
it was not
true.
Bad behaviour: the stock moving incident
[102] The other specific complaint reported by Neil, Cherie and Mr Marks
related to an incident during which Glennys was helping
Brett move stock across
the road and became angry with the way he spoke to her. She said words to the
effect that she would not
be treated like a dog and left. This was the only
reported incident of this kind. Neither Neil nor Cherie raised it with
Brett.
[103] I do not accept that this incident evidences any sustained level of
abuse or bullying by Brett. The movement of stock across
the road was quite a
difficult task that needed two people. Glennys must have assisted Brett many
times. The fact that Glennys only
complained about this one occasion and that
neither Neil nor Cherie considered the situation serious enough to even contact
Brett
to discuss it suggests that it was an isolated incident. I also take
into account Lois Simpson’s evidence that Glennys
seemed to enjoy
helping out on the farm and did not find it burdensome.
A sense of entitlement to the farm
[104] I turn, then, to the assertion that Brett had an (impliedly
unreasonable) sense
of entitlement to the farm. The plaintiffs’ case on this aspect is that Brett
exaggerated his contribution to the farm and downplayed the contributions of
others so as to justify an entitlement to the farm.
It was said that Brett had
done well enough out of the farm through profits he made from his own herd and
could not reasonably have
justified a claim to any greater share in the farm
than his siblings.
[105] I do not accept this. First, Brett gave up a career he enjoyed, the prospects of advancement and a substantial superannuation payment to return to the farm. Secondly, had he not done so, Glennys and Cecil could not have kept the farm. Thirdly, Glennys and Cecil resisted Brett’s clear wish to have an equity interest in the farm but did promise that he would ultimately inherit it. Fourthly, Glennys and Cecil had agreed to pay Brett a lease for his cows and to reimburse him for his losses but they never made those payments. Fifthly, Brett’s profit and equity position after
13 years on the farm was modest considering the level of his
contribution.
[106] On the evidence of Glennys’ and Brett’s accountant, Mr Hartnell, Brett’s total revenue from the farm for the financial years ended 31 May 1999 – 31 May 2013 totalled $1,032,547 with his net profit over that period being $189,232, an average of
$12,615.47 per annum. Mr Hartnell noted that over 80 per cent of all the revenue Brett made was spent on the farm. Mr Hartnell also analysed Brett’s acquisition of equity over that period which, by 31 May 2013, totalled $489,434. Of that, however, nearly one-third came from sources unrelated to the farm (when Brett returned in
1999 he already had savings of $189,000 and some shares). The balance
comprised accumulated net profits (39 per cent), distribution
of livestock from
Glennys’ estate (15 per cent) and revaluation of livestock and shares (13
per cent).
[107] It is notable that between 1999 – 2006, when Brett’s only income came from his interest in the herd he was acquiring progressively, his net profits were $209,949, an average of $29,707 per annum, very much less than he had been making in the Army. After 2006, when his primary source of income was his job at JNL, he made a net loss from his farming activities of $12,309, an average loss of $3,077 per annum. This latter period is notable for the fact that Brett was contributing substantially to the expenses of running the farm; in each of the years 2007 – 2012 his share of the overall expenses was between 30 per cent and 55 per cent. One figure stands out – in those years Brett met between 40 per cent and 100 per cent of the fertiliser costs.
[108] I find that Brett’s decision to return to the farm did not
result in him being in a significantly better financial position
than he would
have been in had he stayed in the Army, nor even in a similar position. He did
not have his chosen career and nor
had he obtained an equity interest in the
farm to which he contributed much by way of labour and money. I have no doubt
that Brett
did feel a sense of entitlement to the farm but I cannot say that
such a feeling was unreasonable.
Conclusion on undue influence
[109] The evidence on which the plaintiffs rely falls far short, either
individually or viewed in totality, of showing that Brett
exercised undue
influence over Glennys.
Family Protection claim
Relevant principles
[110] As an alternative cause of action the plaintiffs have applied under s
4(1) of the Family Protection Act 1955 which provides
that:
If any person (in this Act referred to as the deceased) dies, whether testate
or intestate, and in terms of his or her will or as
a result of his or her
intestacy adequate provision is not available from his or her estate for the
proper maintenance and support of the persons by whom and on whose behalf
application may be made under this Act, the Court may, at its discretion on
application
so made, order that such provision as the Court thinks fit shall be
made out of the estate of the deceased for all or any of such
persons.
(emphasis added)
[111] The principles to be applied in considering a claim under s 4(1) are
conveniently captured in the Court of Appeal’s
decisions in
Little v Angus and Williams v Aucutt.28
[112] In Little v Angus the Court said:
The inquiry is as to whether there has been a breach of moral duty judged by
the standards of a wise and just testator or testatrix;
and, if so, what is
appropriate to remedy that breach. Only to that extent is the will to be
disturbed. The size of the
estate and any other moral claims on
the deceased’s bounty are highly relevant. Changing social attitudes must
have
their influence on the existence and extent of moral duties. Whether there
has been a breach of moral duty is customarily tested
as at the date of
the
28 Little v Angus [1981] 1 NZLR 126 (CA) at 127; Williams v Aucutt [2000] NZCA 289; [2000] 2 NZLR 479 (CA) at
[35].
testator’s death; but in deciding how a breach should be remedied regard is
had to later events.
[113] And in Williams v Aucutt the test was said to
be:29
... whether adequate provision has been made for the proper maintenance and support of the claimant. “Support” is an additional and wider term than “maintenance”. In using the composite expression, and requiring “proper” maintenance and support, the legislation recognises that a broader approach is required and the authorities referred to establish that moral and ethical considerations are to be taken into account in determining the scope of the duty. “Support” is used in its wider dictionary sense of “sustaining, providing comfort”. A child’s path through life is supported not simply by financial provision to meet economic needs and contingencies but also by recognition of belonging to the family and having an important part of the overall life of the deceased. Just what provision will constitute proper support in this latter respect is a matter of judgment in all the circumstances of the particular case. It may take the form of life time gifts or a bequest of family possessions precious to its members and often part of the family history. And where there is no economic need it may also be met by a legacy of a moderate amount. On the other hand where the estate comprises the accumulation of the family assets and is more than sufficient to meet other needs, provision so small as to leave a justifiable sense of exclusion from participation in the family estate might not amount to proper support for a family member.
[114] These cases, and others, were canvassed by the Court of Appeal in
Fisher v
Kirby.30 The Court concluded with these
observations:31
The more recent decisions of this Court have re-emphasised what has always
been understood: that mere unfairness is not sufficient
to warrant disturbing a
testamentary disposition and that, where a breach of moral duty is established,
the award should be no more
than is necessary to repair the breach by making
adequate provision for the applicant’s proper maintenance and
support.
The decisions of this Court from and including Little v Angus are
properly viewed as a timely reminder that awards should not be unduly generous.
But, in our view, neither should they be unduly
niggardly, particularly where
the estate is large and it is not necessary to endeavour to satisfy a number of
deserving recipients
from an inadequate estate. A broad judicial discretion is
to be exercised in the particular circumstances of each case having regard
to
the factors identified in the authority.
29 At [52].
30 Fisher v Kirby [2012] NZCA 310, with the Court observing that the question remains “whether there has been a breach of moral duty judged by the standards of a wise and just testator or testatrix and, if so, what is appropriate to remedy that breach”.
31 At [119] and [120].
The value of the estate at the date of death
[115] Financial statements for the period 1 June 2012 to 31 October 2012
show cash including accounts receivable at $205,978 and
investments (presumably
term deposits) at $145,077. This comprised the bulk of the residuary estate
although there were other assets,
most notably three classic cars and a fourth
vehicle, which were realised during the administration. Once all assets were
reduced
to cash the funds on deposit forming the residuary estate amounted to
$391,036.32
[116] The financial statements show stock at $77,964. The value of Awanui is agreed at $135,000. According to the financial statements the farm was valued at
$1,195,720 which is above the valuations later obtained for the purpose of this proceeding. The later valuations showed it at $1,175,000 in August 2013,
$1,170,000 in December 2014 and $1,050,000 in September 2015. The
September
2015 valuation took account of a significant access detriment, deducting
$50,000 from the value. This related to a dispute with adjoining
owners over
access to the main farm house. However, although that aspect of the evidence
was not challenged, nor was it clear that
the situation had existed at the time
of Glennys’ death, which is the relevant date for assessing the Family
Protection claims.
[117] I consider that the most reliable and closest in time is that
obtained in August
2013 of $1,175,000. The valuation shown in the financial statements was a
government valuation and, self-evidently, not based on
any inspection. Although
the August 2013 valuation was undertaken on a roadside inspection basis only, it
was within $5,000 of the
valuation obtained in 2014 on a full inspection
basis.
[118] Therefore, Glennys’ estate at the time of her death comprised
in general terms:
|
Farm
|
$1,175,000
|
|
Stock
|
$ 77,964
|
|
Awanui
|
$ 135,000
|
|
Residuary estate
|
$ 391,036
|
|
|
$1,774,000
|
32 This figure includes a small amount of rent received after Glennys’ death.
[119] I note in passing that all the farm valuations included the
re-locatable Skyline garage which, under Glennys’ will was
to be removed.
The parties seem to be agreed that it was not part of the farm. But the
evidence suggests that it was a fixture
on the land; it was attached to piles,
connected to a water tank and power supply and a rough “lean-to”
shed (in a sorry
state of repair) was affixed to it.
The moral claims on Glennys’ estate
[120] All four children had moral claims on Glennys’ estate. Brett
clearly had the strongest claim. I consider that a wise
and just testatrix in
Glennys’ position would have sought to recognise the sacrifice that he had
made to ensure that the farm
could be retained, his commitment to it and the
fact that if he did not inherit it he would be unable to buy out his
siblings’
shares. Such a testatrix would also have recognised that
assurances made to Brett had not been honoured. In leaving the farm and
stock
to Brett, Glennys did not therefore breach any moral duty to her other children;
the claims of the other children were properly
met from the balance of the
estate.
[121] Of all the children, Neil seems to have had the most steady and harmonious relationship with his mother. After he and Bell purchased a holiday house at Taipa in
2003 they saw Cecil and Glennys regularly, including having them around for
meals. Neil helped in preparing for the function held
to celebrate Cecil and
Glennys’ 49 years of marriage and Cecil’s 75th birthday.
I accept, too, that when Cecil was ill Neil helped on the farm more than
previously. Belle also assisted and after Cecil’s
death she made an
effort to take Glennys out and keep her company, staying on after Neil moved
back to Singapore, before joining
him in April 2012. However, the
circumstances of Neil’s life made an easy relationship with Glennys more
achievable than
for his siblings.
[122] I am also satisfied that Neil received more than nominal financial help from his parents when he was a student. There was dispute over this. He said that financial help was limited to very small amounts of cash included in a food parcel or similar that his mother sent him. But Brett recounted complaints by Cecil about the extent of financial support being a burden on him and Glennys. Glenda described an incident one Christmas day when she saw Glennys hand Neil a roll of notes and Cecil being angry about it. I find that the truth lay somewhere between these
accounts. In contrast, apart from being allowed to live in the farm cottage
and Skyline garage for a relatively short time, neither
Cherie nor Glenda
appears to have received financial assistance of any kind from their parents. I
am satisfied that, even though
relatively modest, Neil did receive greater
assistance than his siblings.
[123] Neil and Belle are comfortably situated financially with assets in
the form of their house at Taipa and a share portfolio
worth about $715,000 and
debt of $90,000. His only legacy of any substance is the house at Awanui worth
$135,000. Significantly,
and a departure from Glennys’ previous wills, the
2011 will did not include Neil as a beneficiary of the residuary estate.
There
is no apparent reason for this.
[124] The relationship that Cherie had with her parents was the
subject of conflicting evidence. She and Steve described
it as very good.
Cherie recalled discussions between Steve and herself with Cecil over farming
matters and with her mother about
knitting and sewing, including making her
daughters’ ball-gowns. This rather rosy picture was disputed by Glenda,
who said
that the relationship between Cherie and their parents was not
particularly good. She recalled that after she and Cherie moved off
the farm
they both stopped visiting their parents but continued to visit their maternal
aunt and grandmother in Kaitaia.
Their aunt, Carollyn McKenzie,
confirmed this; she recalled that Cherie did not get on with Glennys until the
last six years
or so of Glennys’ life and that Cherie and her family would
always visit her and make jokes about not going to visit Glennys
and Cecil.
That changed when Cecil became ill and relations between the daughters and their
parents improved.
[125] In cross-examination Cherie and Steve acknowledged some tension between them and Cecil and Glennys, which they put down to Cecil’s and Glennys’ traditional views and the fact that they had never married despite having two children together. However, Brett asserted that Cecil and Glennys disliked Steve for other reasons and did not approve of aspects of their lifestyle. I do not need to make
a finding as to whether, or to what extent, those aspects
existed.33 I do, however,
33 I indicated to Mr Wood that I would consider an application for leave to recall Mr Mellor to address these issues but that I did not regard them as matters that required determination. in the event, he elected not to seek leave to recall the witness.
accept Brett’s evidence that Cecil (rightly or not) did
disapprove of what he perceived were unsatisfactory aspects
of Cherie and
Steve’s life. I find that Cherie’s relationship with her parents
prior to 2010 was not as good as she
sought to portray in evidence.
[126] Whatever had gone before, however, the relationships improved
significantly during the period of Cecil’s illness and
continued following
his death. Cherie gave evidence of her and her daughter’s contribution in
terms of caring for Cecil when
he came home from hospital and after Cecil died
Cherie kept in touch with Glennys, mostly by telephone providing tangible and
much-appreciated
support for Glennys. It is also relevant that whilst
Cherie’s relationship with her mother may not have been as good as that
which Neil enjoyed, Cherie was working fulltime, had four children to care for
and lived further away. Her resources were much more
limited.
[127] Cherie and her partner are not as comfortable financially as Neil.
They own a property worth about $520,000 and have debt
of about $232,000. They
both work.
[128] Although Glenda has not made a claim, I am satisfied that her
relationship with her mother was similar to the relationship
which Cherie had.
There had been difficulties but by the last years of Glennys’ life the
relationship was warm and supportive.
Like Cherie, Glenda had not had as easy a
path in life as Neil.
Breach of duty?
[129] Viewed broadly, taking into account the differing contributions Neil,
Cherie and Glenda made to Glennys’ life and their
respective circumstances
I consider that a wise and just testatrix would have sought to treat all three
equally. In particular,
given Neil’s general contribution to
Glennys’ life in an emotional and social sense, a wise and just testatrix
in Glennys’
position would have regarded a bequest to Neil of less than
either of his sisters as inadequate recognition of his place in the family
and
his relationship with her. I consider that Glennys did breach her moral duty to
Neil in providing a lesser sum for him than
for Cherie and Glenda.
[130] I do not, however, consider that a wise and just testatrix would have left Neil a greater share than his sisters. It is true that Neil contributed to Glennys’ life to a greater degree than they did. But that was partly because he was in the happy
position of having a lifestyle that gave him the freedom to have an easier
relationship with her.
[131] I do not consider that Glennys breached her duty to Cherie. A legacy
that places her in an equal position with Glenda was
entirely
appropriate.
[132] The adjustment required to recognise Glennys’ obligation to
Neil is not a large one. Glennys would have discharged
it by ensuring that he
and his sisters took an equal share of her estate, excluding Brett’s
legacy.
Summary of conclusions
[133] I find that Glennys knew and approved the contents of her 2011 will.
The plaintiffs have not established undue influence
by Brett. There is no
basis for making a declaration that the 2011 will is invalid or for making an
order recalling probate.
[134] On the claim under the Family Protection Act, I find that Glennys did
not breach any moral duty to Neil or Cherie by leaving
the farm and stock to
Brett. The decision to do so was supported by a number of valid considerations,
including the need to recognise
both the sacrifices Brett made to retain the
farm and the assurances made to him. Nevertheless, Glennys did breach her
moral duty
to provide proper maintenance and support to Neil. Leaving him a
lesser sum under the will than Cherie and Glenda did not adequately
recognise
his place in the family and his relationship with her. I order, therefore, that
Neil is to be paid such sum from the residuary
of the estate that, when coupled
with the value of the Awanui property, represents one-third of the value of the
estate excluding
Brett’s legacy. On my calculation this would be
approximately $40,000, though counsel will need to confer regarding the exact
amount.
[135] Glennys did not breach her duty to Cherie and Cherie’s claim
therefore fails.
Costs
[136] The plaintiffs have failed in their challenge to the validity of the will. Brett would, in the usual course, be entitled to costs. Neil has had some measure of success on the Family Protection claim and might, in the usual course, also be entitled to costs. In contested will and Family Protection proceedings it is common
for costs to be paid out of the estate. In this case, however, that may
have a disproportionate effect on Glenda. I therefore invite
counsel to address
this issue in memoranda.
[137] Costs are reserved. Memoranda are to be filed on behalf of Brett and
Glenda34 by 1 July 2016, on behalf of Neil and Cherie by 15 July
2016 and by Brett and Glenda in reply by 29 July
2016.
P Courtney J
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