McBeth v Morrison [2018] NZHC 1081 (17 May 2018)

Last Updated: 30 May 2018

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV 2016-419-0061 [2018] NZHC 1081

UNDER	the Wills Act 2007
IN THE MATTER	of Gary Andrew Wendt Estate
BETWEEN	NEVILLE JOHN McBETH Appellant
AND	ANDREA LYNN MORRISON Respondent

Hearing:	09 May 2018
Appearances:	N J McBeth in person, Appellant J E Galt for Respondent
Judgment:	17 May 2018

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 17 May 2018 at 11.00am Pursuant to Rule 11.5 of the High Court Rules

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Registrar/Deputy Registrar

Parties/Solicitors:

N McBeth, Te Awamutu Frankton Law Ltd, Hamilton

McBETH v MORRISON (GARY ANDREW WENDT ESTATE) [2018] NZHC 1081 [17 May 2018]

Introduction

[1] Mr McBeth and the other named appellants appeal a decision of Judge Otene of the Family Court striking out their application for relief under s 3 of the Law Reform (Testamentary Promises) Act 1949 (Testamentary Promises Act) by which they assert claims to motorcycles that formed part of the estate of Gary Wendt who died in a motor vehicle accident on 2 January 2015.¹

[2] In striking out the application, Judge Otene held that the applicants had not pleaded and had not provided evidence that they had provided services or performed work for Mr Wendt or that Mr Wendt had made any promise to provide for the applicants in his will. Therefore, they had not established the elements to found a claim under the Testamentary Promises Act. The Judge described the proceedings as misconceived and not legally tenable.

[3] Following the hearing before me on 9 May 2018, I dismissed Mr McBeth’s appeal and said my written judgment would follow.

Relevant background

[4] Mr Wendt, Mr McBeth and others shared a love of classic motorcycles which extended to acquiring, restoring, racing and maintaining these motorcycles. When Mr Wendt died, he had over 15 classic motorcycles in his collection. It is Mr McBeth’s firm belief that Mr Wendt had intended those motorcycles to go to Mr McBeth and others after his death, and that the recipients would have had a continuing responsibility to preserve and maintain the machines.

[5] Mr McBeth and the other applicants were upset to learn after Mr Wendt’s death that probate over Mr Wendt’s estate had been granted on the basis of a will that Mr Wendt had executed in December 1993 appointing as executrix and sole beneficiary Andrea Morrison, Mr Wendt’s then de facto partner. Mr McBeth and the other applicants do not consider this outcome accords with Mr Wendt’s intentions, not least because Mr Wendt and Ms Morrison separated in 2000 and both Mr Wendt and

¹ McBeth v Morrison [2015] NZFC 11106.

Ms Morrison entered into new relationships. However, while the applicants have made assertions about the validity of the 1993 will and questioned whether there may have been a subsequent will, they have taken no steps to challenge the grant of probate over Mr Wendt’s estate on the basis of the 1993 will.

Procedural matters

[6] Mr McBeth appeared in person. The other appellants did not attend the hearing.

[7] The notice of appeal filed by Mr McBeth on behalf of himself and the other appellants asserted various errors on the part of Judge Otene in the conduct of the Family Court hearing, including failure to adjourn the hearing as sought by the appellants and proceeding in their absence, failure to transfer the proceeding to the High Court as sought by the appellants, and bias on the part of the Judge. However, in his written submissions filed in advance of the hearing, Mr McBeth said the appeal was under two headings: the proceeding had not been conducted in accordance with the Family Court Rules; and the decision was substantively wrong.

[8] Neither in his written submissions nor during the hearing did Mr McBeth articulate clearly what he meant in alleging that the Family Court proceeding had not been conducted in accordance with the Family Court Rules. It was apparent, however, that many of Mr McBeth’s complaints about the Family Court decision relate to his belief that relevant evidence and the written submissions he had filed in advance of the Family Court hearing had not been taken into account by the Family Court.

[9] At the hearing before me, Mr McBeth said it had been his expectation that he would have had an opportunity to cross examine Ms Morrison. He also said that he wanted to explain to the Court why he had a right to recover items of machinery he said he had provided to Mr Wendt and which had been incorporated into Mr Wendt’s motorcycles.

[10] I said to Mr McBeth that the only matter before the Court was the appeal against Judge Otene’s decision to strike out the Testamentary Promises Act application and that I would not accept submissions or evidence on other matters, including in
particular, the validity or otherwise of the 1993 will. If Mr McBeth or others wished to pursue those issues, including Mr McBeth’s claim to parts incorporated in Mr Wendt’s motorcycles, they would need to bring some other form of proceeding.

Substantive challenge to District Court decision

[11] Once those ground rules had been established, I invited Mr McBeth to focus on the substantive objection to Judge Otene’s judgment – namely that there was evidence to establish that Mr McBeth and others had provided services to Mr Wendt and that Mr Wendt had made firm commitments to them that they would receive his motorcycles upon his death. To that end, I granted leave to Mr McBeth to produce the additional evidence that had been attached to his submissions he had filed in October 2017. Mr Galt said he had no objection.

[12] I allowed Mr McBeth considerable latitude in presenting his account of his friendship with Mr Wendt and did not insist that he confine himself to the matters that had been set out in the evidence attached to his submissions. From Mr McBeth’s account and that evidence, I am satisfied that there is substance to Mr McBeth’s assertions that he and others had provided considerable assistance to Mr Wendt as they pursued their shared passion for collecting, restoring and racing classic motorcycles. This included Mr McBeth acquiring and modifying parts that were incorporated into Mr Wendt’s motorcycles as well as assisting Mr Wendt in logistical support for Mr Wendt’s racing of those motorcycles. I am also satisfied from Mr McBeth’s account that as his health deteriorated Mr Wendt told Mr McBeth and others that he would be leaving his motorcycles to them.

[13] Against that background, I can understand the disappointment Mr McBeth and other friends of Mr Wendt when they learned Mr Wendt had made no special provision in his will for the distribution of his motorcycles. I accept too Mr McBeth’s assurance that the disappointment related to the risk that these classic machines would be disposed of with no thought to their heritage and Mr Wendt’s investment in them.

[14] The difficulty for Mr McBeth and the other appellants, however, is that, as Mr McBeth said in his presentation to the Court, the assistance that he and others gave
to Mr Wendt over the years had been given with no expectation of reward. Mr McBeth gave a poignant example when he had manufactured a larger sprocket that had improved the performance of one of Mr Wendt’s machines and Mr McBeth had refused Mr Wendt’s offer to reimburse him for his efforts. Mr McBeth said he had been happy to have been the friend of Mr Wendt and to have able to help a revered figure in motorcycling circles. I am also satisfied from Mr McBeth’s account that such indications as Mr Wendt had made about passing on his motorcycles to others had been made for the purpose of preserving and maintaining these classic machines among the group of enthusiasts and not as a reward for services provided to Mr Wendt.

[15] By Mr McBeth’s own account, therefore, and as Mr Galt submitted, there is no nexus between the services that Mr McBeth and others provided to Mr Wendt and their expectation of receiving some of Mr Wendt’s motorcycles following Mr Wendt’s death sufficient to establish a claim under the Testamentary Promises Act.

[16] The essential requirement under s 3 of the Act is that a claimant must prove there was an express or implied promise by the deceased to reward the claimant for services or work provided by the claimant by making some testamentary provision for the claimant. Mr McBeth has not established in the evidence attached to his submissions or in his account to the Court that Mr Wendt had promised to make provision in his will for Mr McBeth and the other appellants as a reward for services they had provided to Mr Wendt.

[17] As a consequence, despite the more developed factual basis for the claim presented on appeal, the substantive claim under the Testamentary Promises Act cannot succeed. It follows that there is no basis for overturning Judge Otene’s decision striking out the appellants’ claim under that Act.

Result

[18] The appeal against Judge Otene’s decision striking out the application for relief under s 3(3) of the Law Reform (Testamentary Promises) Act 1949 is dismissed.

Costs

[19] Mr Galt asked for costs, noting the time and expense entailed in responding to the appeal. I agree the respondent is entitled to costs on a 2B basis. If the parties are not able to agree costs, the respondent is to file a memorandum by 12 June 2018; any reply by the appellants should be filed by 18 June 2018. Memoranda should not exceed 4 pages.

G J van Bohemen J