IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE	
CIV-2019-412-000022
[2020] NZHC 1453	

IN THE MATTER	of the Estate of FRANCIS JOHN KERSHAW	
BETWEEN	ROCHELLE ANNE CLEARY, JASON DESMOND BARRETT and ANDREW KIRK RAYMOND BARRETT
Plaintiffs	
AND	IVAN JOHN COCKROFT as Executor and Trustee of the Estate of the Deceased Defendant	

Hearing	18 June 2020	
Appearances:	B R D Burke and J I Grant for the Plaintiffs M J Foley for the Defendant
(Attendance of G Wilkin for Interested Party Beverley Quayle excused)	
Judgment:	25 June 2020	

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 25 June 2020 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

CLEARY v COCKROFT [2020] NZHC 1453 [25 June 2020]

Introduction

[1]	The issue in this case is whether a couple’s wills were executed as mutual wills.

[2]	Francis (Frank) and Christine (Chrissy) Kershaw began a de facto relationship in 1998, thereafter purchasing a property together, and were married in June 2005. They had both been married before and each had three (by then adult) children to their previous partners.

[3]	Chrissy died on 26 September 2011. Frank died on 9 August 2017.

[4]	This proceeding concerns the validity of Frank’s will dated 4 April 2012.

[5]	The defendant is Ivan Cockroft, the solicitor appointed as executor and trustee under Frank’s final will.

[6]	The plaintiffs, Rochelle Cleary, Jason Barrett and Andrew Barrett (Chrissy’s children), seek a declaration that Mr Cockroft holds a one-sixth share of the residue of Frank’s estate on trust for each of them. They assert that the provisions of Frank’s will constitute a breach of a mutual wills arrangement entered into between Chrissy and Frank. The provisions of the wills executed in October 2009 mirrored one another. By the 2009 wills, Chrissy and Frank each left their estates to the other if he or she survived for 14 days, failing which the estate was left to be divided equally among all the surviving children and step-children of the two of them.

Facts

[7]	Chrissy and Frank entered a relationship in the nature of marriage in April 1998. At the time Chrissy was aged 41 and Frank 46.

[8]	By reason of the age of their children, they lived as a couple, none of the children becoming melded as part of their household. Frank’s younger children remained with their mother. There would be no children of Frank and Chrissy’s relationship.

[9]	Chrissy had been employed by the local hospital in supply and maintenance. It appears that Chrissy was part of a superannuation scheme. The couple moved into a house in Ball Street, Invercargill which Chrissy owned (and which was subsequently sold in 2003 for $101,000). Chrissy’s significant assets on entering the relationship appear to have been her house property and her superannuation entitlement.

[10]	Frank had been and continued to be in the Fire Service, as the station manager at Invercargill. Frank did not own a house, his former wife having taken over the house on their separation. Frank’s major assets appear to have been a substantial Fire Service superannuation entitlement and an interest in fishing quota. He was during the relationship also to inherit an unspecified sum from his mother’s estate, who died in 1998.

[11]	Mr Cockroft was, throughout, Frank’s regular solicitor. He gave evidence. His recollection was that Frank received $135,000 out of his Fire Service superannuation and that his half share of fishing quota had been worth $200,000, from which he received some distribution and income in the course of his relationship with Chrissy.

[12]	A number of witnesses gave evidence about Frank’s approach to life. Mr Cockroft, who acted as Frank’s lawyer for many years, described him thus: “Frank was a very private man. He also saw things in black and white. I always found him  to be completely honest in his dealings”.

[13]	Frank’s daughter, Rochelle Shaw, described him thus:

He was meticulous in his paperwork, dotting every “i” and crossing every “t”. He was very disciplined and a tad “OCD” when it came to things like cleaning, housework and paperwork. He liked order and abhorred chaotic behaviour.

[14]	Some of these characteristics of Frank were reflected in his habit of handwriting correspondence twice so that he could keep a copy for his records (records amongst which Rochelle Shaw was later, after Frank’s death, to find a letter which recorded his provision of some items of Chrissy’s to Rochelle Cleary).

[15]	Mr Cockroft prepared a will for Frank after his relationship with Chrissy had commenced. In the will, executed on 2 September 1998, Frank appointed Chrissy as

his executrix and trustee, and gave his residue in half shares to Chrissy and to his surviving children respectively.

[16]	It is clear from the evidence given by a number of witnesses that Chrissy and Frank settled into a loving relationship.

[17]	While this was not a situation of a melded group of children, it is clear on the evidence that the couple for the most part enjoyed reasonably close relationships with their respective children (and grandchildren). In the case of Frank’s children, that particularly applied to Rochelle Shaw and to Logan Kershaw. Shana Kershaw was to become closer to her father again after Chrissy’s death. In relation to Chrissy’s children, I heard evidence of an initially quite close relationship on the part of Rochelle Cleary with both Chrissy and Frank but with less contact in later years. At Frank and Chrissy’s wedding in 2006, the two Rochelles were the witnesses.

[18]	Chrissy and Frank enjoyed a close recreational and social relationship with Chrissy’s brother, Garry Quayle and his wife, Lesley. I return below at [21] to evidence which they have given to discussions with Chrissy and Frank concerning wills.

[19]	Frank and Chrissy were to acquire and dispose of a number of properties and businesses:

•	In August 1999, they purchased in joint names a residential property in Otautau.

•	In December 2001, they incorporated a company to purchase the Alexandra Video Shop.

•	In January 2002, they purchased an Alexandra residential property as tenants-in-common in equal shares (and moved to Alexandra).

•	In November 2003, Chrissy sold her Ball Street property.

•	In March 2004, they incorporated a company to purchase the Cromwell

Video Shop.

•	In 2005–2006, the Alexandra and Cromwell video shops were sold.

•	In September 2008, the Otautau property was sold.

[20]	In the meantime, on 4 June 2005, Chrissy and Frank were married at Alexandra. They continued to reside in the Alexandra home they had purchased in 2002.

[21]	Garry and Lesley Quayle gave evidence of discussions which they had had with Chrissy and Frank about wills. They referred to a camping trip made by the two couples to Twizel at (Canterbury) Show Weekend in November 2005. Garry Quayle, in the brief of evidence which he read, recorded: “On that trip Chrissy and Frank advised and discussed about their wills and how they planned to leave everything to each other and then to their respective families”.

[22]	Garry Quayle explained that later, after Frank’s death, he was able to work out precisely the relevant dates of discussions by reference to a detailed diary which his wife, Lesley, had kept through the years (and was produced in evidence).

[23]	Mr Quayle also identified a later visit to Chrissy and Frank in Alexandra. He gave evidence that on 7 January 2006 (for Chrissy’s birthday party), he and Lesley had been informed by Chrissy and Frank that their wills were “sorted”.

[24]	Mr Quayle explained both discussions which had taken place in relation to wills. He stated:

… it was difficult because both my wife and I, we had mixed families, like Chrissy and Frank and we discussed what we were going to do and how we were going to do it fairly and the fear that came up is that if either of us died, it went to the next party to the partner, and when they died it was split up between the kids. Frank’s kids weren’t present and weren’t really on the scene at that stage, and he was reluctant to involve them but my counsel said that things change and the whole family needs to be involved.

[25]	In relation to the 2006 discussion, Mr Quayle stated:

They said they signed the will with the solicitor and being relieved it was sorted was it was really that everybody was going to be fair, fairly treated, both parties, that the kids were going to be fairly treated, which was a relief.

[26]	Mr Quayle explained that he and his wife had at that time recently made their own wills through the Public Trust.

[27]	Evidence was not led from either Garry or Lesley Quayle as to whether they, either now or at the time they made their own wills, understood the concept of mutual wills or whether they had recorded or identified in any other way that they were entering into a binding, mutual will arrangement.

[28]	Rochelle Cleary in her evidence referred to a trip taken by Chrissy and Frank to Singapore in March 2006. Rochelle stated that before they left on that trip, they had told her that they had both signed a will in case anything happened while they were overseas. Rochelle stated that they had told her that they wanted all their possessions to be divided equally between the six children and step-children, stating that that was “the only fair way for all of us children”.

[29]	Garry Quayle was subsequently, after Chrissy died but before Frank died, to learn from his sister, Beverley, that Frank had changed his will. He stated that when he learned of that, he had got hold of his niece, Rochelle Cleary, to advise her to put a caveat over the Alexandra house as quickly as possible.

[30]	In the meantime, in January 2009, Chrissy was diagnosed with bowel cancer, a condition from which she was subsequently to die in September 2011.

[31]	Rochelle Cleary gave evidence that her mother Chrissy had come to see her two days after she had been diagnosed with cancer (in January 2009). Rochelle recalls Chrissy saying that things were not looking good for her but that she did not want Rochelle to worry as she had appointed her sister, Beverley, as the executor of her will. (Rochelle stated that it was only later when she received a copy of Chrissy’s will that she realised that Beverley was a witness to the will rather than the executor.) Rochelle said that in this January 2009 discussion, Chrissy again said that it was her wish that

all six children had an equal share of her assets. She said that Chrissy also referred to everything being sold including vehicles, furniture and non-sentimental items.

[32]	Chrissy and Frank in October 2009 arranged to make wills through Mr Cockroft. It is these wills which the plaintiffs assert were mutual wills.

[33]	Mr Cockroft gave evidence of his recollection of matters relating to the wills. His evidence was carefully given. As with all the witnesses, he was recalling matters which had occurred more than a decade ago. Where he could not be sure, he indicated as much. Where he was speaking of his usual practice, he made it clear that he was speaking of his practice rather than of his specific memory of a particular event. When it came to matters concerning Frank Kershaw’s asset position and contribution to financial transactions, he made clear his areas of uncertainty. I am satisfied that Mr Cockroft gave his evidence candidly and accurately.

[34]	Mr Cockroft explained that upon the shift of Chrissy and Frank to Alexandra, after he himself had become his firm’s resident partner there, both Chrissy and Frank had used him as their solicitor. He had also acted for Chrissy on the sale of her Invercargill property in 2003 and also for both Chrissy and Frank on the purchase of the Cromwell and Alexandra video shops.

[35]	Mr Cockroft identified 2009 as the first occasion (after Frank’s will of 1998) on which he had been instructed by either Frank or Chrissy to prepare a will. To Mr Cockroft’s knowledge, he was the only solicitor who acted for Frank. Mr Cockroft confirmed that Frank and Chrissy did not discuss wills with him or have wills prepared by him in 2006.

[36]	Mr Cockroft stated that in 2009, Frank and Chrissy came in to arrange new wills. Mr Cockroft stated that he did not recall anything out of the ordinary about his meeting with the clients. He had no file notes suggesting that there was anything of significance to note. He explained that in his practice simple wills are not charged for and he does not usually open a separate file for them. In this case, he would have jotted down something to the effect: “all to each other, survivor’s residue equally

between respective families”, dictated that to his secretary, “and the will would have been sorted”.

[37]	Mr Cockroft accepted in cross-examination that he could not recall the actual interview with Chrissy and Frank in relation to their will instructions. When asked whether the will instructions could have come by phone he replied:

They could have but I suspect that they came in and saw me because I certainly don’t recall a phone conversation. It’s not often that I get will instructions over the phone. I will get amendments to will instructions but not the original instructions. It’s pretty rare.

[38]	Mr Cockroft stated that he would have given Frank and Chrissy his standard spiel about wills being able to be changed – he explained that he does not say specifically to clients that wills are “revocable” but instead puts it in more basic terms. He explained that he indicates “with some humour” that “there is nothing to stop the other person going away and changing their will while their partner is alive, or after their death”.

[39]	In cross-examination, Mr Cockroft said that such has been his practice particularly with “second time rounders” but that he also does it with “normal married couples”, as it is “a difficult thing to broach when people are making their wills”.

[40]	It was suggested to Mr Cockroft in cross-examination that by providing that information in a light-hearted manner, it could go over someone’s head. Mr Cockroft rejected that suggestion, stating that he thinks the message is clear.

[41]	When it was suggested to Mr Cockroft in cross-examination that he could not know whether he gave Chrissy and Frank his standard spiel, Mr Cockroft stated that he had done hundreds of wills over the years, and could not remember specific wills, but that all he could do was cite his standard practice and state that it is his standard practice.

[42]	In cross-examination, Mr Cockroft referred also to another practice. He sends out a copy of the will to his clients with a note on the bottom of the packet which indicates that the will can be revoked at any time and also gives details as to the need

for further contact if a beneficiary or executor dies. He recognised that there was no record of that particular (copy) wills packet having been sent out to Chrissy and Frank and that he honestly did not know, this far on, whether they had picked up such a copy.

[43]	Turning to the concept of mutual wills, Mr Cockroft stated that he understood the nature of mutual wills. He stated that he had been involved in many estate planning matters and had administered numerous estates in his years of practice. In that time, he had never prepared a mutual will or been involved in a mutual will file.

[44]	Chrissy and Frank executed the wills as prepared by Mr Cockroft on 20 October 2009. The will of each was witnessed by Chrissy’s sister, Beverley Quayle, and another. The wills were then returned to Mr Cockroft for safekeeping.

[45]	Rochelle Shaw referred to her father as a person who did not discuss his finances or wills with his children in any detail, describing him as a “very private man”. She stated that until 2012, she had no knowledge of any of the wills he made – that year he told her that he had left everything to his three children. She stated that later on he had told her about his wish to “give Bev a roof over her head” and possibly a life interest, a concept with which Frank’s three children were happy.

[46]	Rochelle Cleary stated in evidence that she was involved in a further discussion in early-September 2010 when she and her then-husband, Robin, were visiting Chrissy and Frank. The discussion was not about wills but rather about jewellery and other household items. Rochelle stated that Chrissy had told her that she wanted her to have all of her jewellery as she was her only living daughter and that she referred to other items for other children or grandchildren.

[47]	Issues were raised in the plaintiffs’ evidence over the fact that they had not received a number of items of Chrissy’s of personal significance (such as jewellery and paintings). Mr Cockroft gave evidence in reply. These matters as raised by the plaintiffs are not of direct relevance to the mutual wills issue. I will therefore not examine any of the evidence in that regard. It is sufficient to record that had it been suggested in submission that the non-return of particular items reflected on the reliability of Frank to meet obligations (which Mr Burke responsibly did not submit

to be the case) I would have found the evidence adduced to be inconclusive in that regard.

[48]	Chrissy subsequently died from her illness on 26 September 2011. Frank was granted probate over her will and her estate was administered. In terms of Chrissy’s 2009 will, Frank inherited everything.

[49]	In March or April 2012, Mr Cockroft saw Frank once again, this time in relation to what became Frank’s last will. Frank by his last will dated 4 April 2012 left his estate entirely to his three children. Mr Cockroft stated:

… I would have dictated that as soon as he left the office. There was nothing out of the usual about it. He left everything to his 3 children equally. This was at the same time I was attending to winding up Christina’s estate. I am confident I would have raised the issue of the earlier will with him, as I do with most clients.

[50]	At some point after Chrissy’s death, Frank formed a relationship with her sister Beverley Quayle. Rochelle Cleary identifies the relationship as having commenced specifically on 29 September 2012 and says that it upset her very much. From evidence given by Mr Quayle, it also appears to have upset him.

[51]	Mr Cockroft saw the relationship between Frank and Beverley as one of “strong companionship”. It led Frank to see Mr Cockroft again, with a view to providing Beverley with a life interest in his Alexandra property. Frank had spoken to his daughter, Rochelle, about wanting “to give Bev a roof over her head”, possibly a life interest in the Alexandra home. It transpired that although Mr Cockroft drafted and provided to Frank a draft will on that basis, Frank never signed it. When Mr Cockroft followed the matter up with him, Frank indicated that he did not want to sign it.

[52]	Rochelle stated that on 21 April 2017, her grandmother, Catherine Quayle (the mother of Chrissy, Beverley and Garry) had advised her that Frank had changed his will so that it did not include Rochelle or her brothers.

[53]	Frank’s health declined from around 2013 on. He was eventually to die of cancer at Dunstan Hospital on 9 August 2017.

[54]	Probate of Frank’s last will was granted to Mr Cockroft on 13 September 2017.

[55]	The plaintiffs first came to the attention of Mr Cockroft when they filed a claim under the Family Court. That claim was subsequently withdrawn as the plaintiffs had no standing (as step-children) to bring such a claim.

[56]	Subsequently the plaintiffs gave notice to Mr Cockroft of their intention to make this claim.

Note in relation to the timing of discussions

[57]	I find on the balance of probabilities that the only wills made by Frank and Chrissy during the period of their relationship were the wills executed on 20 October 2009.

[58]	I add at this point an observation as to the discussions of which various witnesses gave evidence concerning the will intentions of Chrissy and Frank. It is clear that, notwithstanding the promptings of Garry and Lesley Quayle in 2005, Frank and Chrissy did not have wills prepared at that time. I find on the basis of the evidence given by Garry and Lesley Quayle that they were nevertheless informed by Chrissy and Frank early the following year (2006) that their wills were “sorted” or some such words. I also find that in March 2006, Rochelle Cleary was informed by Chrissy and Frank that they had signed wills. It is unclear on the evidence why Chrissy and Frank gave family members such an understanding when they had not in fact attended to wills at that point.

[59]	I also find a parallel between the detail of the 2006 conversation related by Garry and Lesley Quayle and the detail of the January 2010 conversation which Rochelle Cleary had with her mother, when Chrissy expressed the wish that all six children should have an equal share of her assets.

[60]	Self-evidently, the 2006 discussions – the Quayles’ in early-2006 and Rochelle’s in April 2006 – cannot have involved any communication on the part of Frank or Chrissy which accurately recorded any agreement reached in relation to the allegedly mutual wills. Those wills were not drafted or executed until October 2009.

[61]	There was an unsurprising difficulty with memory – witnesses were being asked to recall events in some cases 14 years old. It appears probable that some witnesses’ recollections as to precisely what was said about wills are mistaken. The possibility of mistake was responsibly recognised by Robin Cleary. He gave evidence that he was at home with his then-wife Rochelle Cleary, when Frank and Chrissy advised them that they had signed wills and intended to leave their estates to their respective children and step-children. When it was pointed out in cross-examination that there is no will before the Court dated 2006, Mr Cleary accepted that Frank and Chrissy may have been talking about their intent.

Mutual wills – the law

[62]	In New Zealand, there are two bases by which the commitment of two testators to make and maintain mutual wills may be given effect, namely:

(a)	by recognition of an institutional constructive trust pursuant to the equitable doctrine of mutual wills; and

(b)	in relation to wills signed on or after 1 November 2007 (as these wills were), through a claim by the intended beneficiary on a promise in relation to mutual wills as provided for in s 30 Wills Act 2007.

The equitable doctrine of mutual wills

[63]	The leading New Zealand decision on the equitable doctrine is that of the Court of Appeal in Lewis v Cotton.1 The executors and trustees of a will may be required to hold affected assets upon a constructive trust in terms of a revoked will.2

[64]	In Wilson v Saunders, I observed:3

[8]	… From Lewis v Cotton, and the authorities there referred to, the imposition of a constructive trust based on mutual wills has two fundamental requirements:

1	Lewis v Cotton [2001] 2 NZLR 21 (CA).
2	At [42] per Blanchard J (delivering the judgment of the Court).
3	Wilson v Saunders [2016] NZHC 1211, (2016) 17 NZCPR 404 (footnotes omitted).

(a)	There was an underlying consultation and coordination between two testators which resulted in an agreement or an arrangement as to how they would make their respective wills (which were then made). I will refer to this as the requirement for “corresponding wills”. Reference is sometimes made to “mirror wills” and, more ambiguously and confusingly, to “mutual wills”.

(b)	There must have been a contract or mutual understanding (intended to bind each testator to a future cause of action) that neither testator would revoke the will provision or deal with the property in a manner inconsistent with the provisions of the corresponding wills.

[9]	In addition to the above two requirements, there are requirements of proof and of evidence. The mutual understanding of the two testators:

(a)	must be sufficiently certain in its terms that the Court can enforce the terms;

(b)	may be oral or in writing and may be contained in the wills themselves or proved by extraneous evidence, and may be proved either by express agreement or by conduct, such that [sic] that the mutual understanding may be implied;

(c)	does not require consideration in the usual sense;

(d)	is not established by the mere fact that the testators made corresponding wills; and

(e)	is to be established on the ordinary civil standard (balance of probabilities) but is to be scrutinised, as a claim over the property of a deceased person, with very great care.

Section 30 of the Wills Act

[65]	Section 30 Wills Act provides:

30	Mutual wills

(1)	This section applies when—

(a)	2 persons make wills in which each—

(i)	disposes of property on which the 2 persons have agreed; and

(ii)	makes the disposition in a way on which the 2 persons have agreed; and

(b)	each promises the other that he or she will not—

(i)	revoke the will without making another will that keeps the agreement in the same or a better way; or

(ii)	change the will in a way that fails to keep the agreement in the same or a better way; or

(iii)	dispose, during his or her life, of some or all of an item of property that the will specifically disposes of; and

(c)	the first of them to die (person A) keeps the promise; and

(d)	the second of them to die (person B) does not keep the promise.

(2)	A person who would have received a benefit from person B’s will if person B had kept the promise may claim from person B’s estate any part of the benefit that person B’s estate does not provide.

(3)	The agreements referred to in subsection (1)(a), and the promise referred to in subsection (1)(b), may be made orally, in writing, or electronically.

[66]	In their submissions, counsel differed on whether s 30 should be viewed as essentially a codification of principles applying under the equitable doctrine. Ms Foley submitted that Professor Nicola Peart had correctly identified the position by stating that (under the Wills Act) the common law will continue to be relevant to mutual wills but the criteria establishing their existence are now clarified and expressed in accessible language.4 That view is consistent with the observations of the Law Commission (which was assisted by a critical review from Professor Peart) when reporting on the draft provision which became s 30 Wills Act. The Commission stated: “Its purpose is to set out in statutory form the existing law of mutual wills”.5

[67]	Ms Foley referred to a number of cases in order to draw comparisons or contrasts with this case:

(a)	Lewis v Cotton – a case in which a daughter’s claim failed, the Court of Appeal upholding the High Court judgment to that effect.6 Blanchard J, delivering the judgment of the Court of Appeal, explained:7

4	Nicola Peart “Where there is a Will, There is a Way – A New Wills Act for New Zealand (2007) 15 Waikato Law Review 26 at 44.
5	Law Commission “Succession Law: A Succession (Wills) Act” (NZLC R41, 1997) at 57.
6	Lewis v Cotton, above n 1.
7	At [46].

… there must be more than mere consultation and coordination between the testators and more than a mere agreement or arrangement between them that they will proceed to make their respective wills in a particular way. Such an agreement does not restrain the right to revoke …

Blanchard J went on to note that a commitment to mutual wills is unlikely and undesirable in modern times, which explains why true “mutual wills” are now so very infrequently found.8

(b)	McNeish v McArthur – a case (Ms Foley submitted correctly) in which the surrounding evidence of commitment was stronger than in this case, yet still the claim failed.9 Mirror wills were made. Subsequent mirror wills were also made. The testators also told one of the children of the scheme of their wills (as here) at the time of being diagnosed with terminal cancer. The plaintiff gave evidence of a statement by the last “dier” that the latter would “honour his mother’s wishes”, reinforcing an earlier family discussion indicating that each branch of the family would receive an equal share. Doogue J found that neither testator had promised that they would not revoke their will. Doogue J distinguished cases in which testators had used phrases such as “I will not alter the position” or “nothing will change”.10 Her Honour found that the parties had entered into “an honorary agreement of mutual expectation and desire and not an implied or inferred agreement as to non-revocation”.11 Her Honour noted the absence of any full family meeting in which children were called together for the parties to publicly state that there would be provision in certain terms and the terms would not subsequently be altered.12 Her Honour further noted that the testators had been in receipt of legal advice at the time and observed that “any lawyer worth their salt would have advised them that wills are

8	At [48].
9	McNeish v McArthur [2019] NZHC 3281.
10	At [59].
11	At [50] and [58].
12	At [60].

revocable instruments”, finding that it was more likely than not that they would have been given that advice.13

(c)	Webb v Smith – a case in which Ellis J applied Lewis v Cotton and declined a claim based on mutual wills, her Honour observing:14

Significantly, [the] evidence was that there was no discussion to this effect with the Public Trust, and that such a discussion would certainly have taken place had [the willmakers] indicated a wish to set matters in stone. The absence of any such discussion is in my view a strong indication that irrevocability after the “first dier’s” death was not within their contemplation. Nor of course is there any indication of irrevocability on the wills themselves or in any separate document.

(d)	Henson v Gandar – a case in which the plaintiffs established the existence of mutual wills.15 It was another “blended family” case but one in which the couple treated themselves as having “four children, not one of hers and three of his”.16 Clifford J accepted the evidence of remarks jointly made by the couple at a family meeting in which children were called together from distances (including overseas) for the discussion of “important matters”, which included an explanation that under their wills everything was left first to the other and then the surviving partner was to divide the property equally amongst the four children.17 Clifford J found that both testators together explained the arrangement and stated that the arrangements would not be changed, two witnesses recalling words to the effect that the arrangements were “set in stone” being used.

[68]	Bringing together the principles identified in Lewis v Cotton and having regard to the application of the other cases to which she had referred, Ms Foley submitted that at its highest, the evidence relating to the will-making of Frank and Chrissy showed an intention in 2009 to leave their estates to each other, and then to their

13	At [51].
14	Webb v Smith HC Tauranga CIV-2010-470-264, 14 October 2011 at [46].
15	Henson v Gandar [2016] NZHC 841.
16	At [47].
17	At [25]–[26].

children and step-children. But Ms Foley observed that life is fluid, circumstances change and people do not generally bind themselves to a will for that reason, as identified by Blanchard J in Lewis v Cotton. Ms Foley likened the case to the honorary agreement of mutual expectation and desire (not an implied or inferred agreement as to non-revocation) found by Doogue J to exist in McNeish v McArthur. Ms Foley noted that there is no evidence at all that a promise was made by either party not to revoke. She noted the absence of any discussion of a promise not to revoke. Mr Cockroft, whose evidence was that he had never drafted a mutual will, would in accordance with his standard practice have covered off with Frank and Chrissy the right that they would have had to revoke their wills.

[69]	To the extent that Frank and/or Chrissy had discussions with others as to their intended wills (2005/2006 with the Quayles and in both 2006 and early-2009 with Rochelle Cleary), the discussions must clearly have lacked any reference to non- revocability when it is appreciated that at those various times Frank and Chrissy were not at the point of making their wills (in fact drafted and executed in October 2009).

[70]	In conclusion, Ms Foley submitted that the strict requirements under the doctrine of mutual wills, including particularly evidence of a commitment to non- revocation, are missing in this case.

Plaintiffs’ submissions

[71]	For the plaintiffs, Mr Burke emphasised the manner in which Chrissy and Frank had pooled ownership of their property from the commencement of their relationship. Mr Burke referred to the couple as having both made financial contributions and working hard to build up their assets during their 13-year relationship. He invited the Court to view those matters as having been in the forefront of their minds when they made their wills.

[72]	I pause to observe that Mr Burke, in speaking to his submissions, appeared to come close to suggesting that there had been something close to an equality of financial contribution to the various assets purchased in the course of the relationship/marriage, a proposition which did not appear to be justified having particular regard to the significant superannuation and fishing quota assets of Frank

which had gone into the purchase of the couple’s assets. The proposition had also been inadequately developed in the plaintiffs’ evidence and submissions in that no attempt at tabulating contributions had been attempted. Mr Burke was therefore to file a memorandum after the hearing tabulating his assessment of contributions according to the evidence adduced. Mr Burke filed such a memorandum. It is sufficient to state, as might be anticipated by the evidence I have referred to, that the table fell far short of establishing that the couple had come close to an even pooling of separate property. The evidence adduced indicates that Frank’s assets were the substantial contributor to the “pool”. This undermines any suggestion that Frank and Chrissy in their will arrangements were substantially basing a commitment on the way their assets had been built up.

[73]	Mr Burke next focused on the role of Mr Cockroft in taking instructions for the wills and providing them for execution. Mr Burke suggested on the evidence it was possible that either Mr Cockroft had not given his usual explanation as to revocability or that, if he did, it was given in such a way that it may not have been understood by Chrissy. Contrary to Mr Burke’s submission, I am satisfied that Mr Cockroft in fact gave his explanation to the couple and that it was probably understood. I note that any omission to give an explanation as to revocability would serve only to provide background evidence for the plaintiffs’ claim – they would still be required to establish mutual promises of Frank and Chrissy, express or implicit, that their wills would not be revoked.

[74]	Mr Burke then submitted that the nature of the corresponding wills and the surrounding circumstances (including the statements made by Chrissy and Frank) proved that there was an express promise or agreement to make the corresponding wills and, in the case of the survivor, to not revoke their will. Contrary to Mr Burke’s submissions, there was no evidence called of such an express promise. To the extent that cases have recognised that words used such as “the wills are set in stone” are evidence of promise, there has been no evidence of similar wording being used in this case.

[75]	Mr Burke’s alternative submission was that the evidence establishes an implied promise or agreement as to non-revocability. Mr Burke cited the judgment of

Hammond J in Re Newey (deceased) as representing perhaps the most analogous case.18 In Re Newey (deceased) a couple who married each had two children from previous marriages. They brought real assets to the marriage and purchased land as joint tenants, building a home on it. By their mirror wills, the survivor would leave the real property in equal shares for the four children. The Court found on the balance of probabilities that there had been an agreement which fell within the mutual will principles. Hammond J found that there had been in substance an undertaking between the two that the survivor would dispose of the home property between “their” four children.19 The couple had reported their will arrangements to the wife’s son “in terms which strongly suggested the survivor would have to act with respect to the jointure in a particular way”. 20 There had been a discussion between the husband and the same son subsequently which tended to confirm that the husband was well aware of this as an obligation. His Honour also found relevant the husband’s making a new will shortly after his wife’s death which retained the substance of “the agreement”. Finally, it appears from his Honour’s discussion of the “broad facts” that Re Newey (deceased) was a case in which Mrs Newey as the wife had brought the majority of property to play in the purchase of what became the home property for the couple. Hammond J noted that: 21
… the defendants contend that the financial contributions of Gwen and Jack were nothing like as lopsided as the plaintiffs claim; that Jack was a man of substance himself with a respectable income and assets of his own …

[76]	Re Newey (deceased) is distinguishable from the present case. The Court there found that the words used by the testators “strongly suggested” that there had been an undertaking of non-revocability.22 Jack Newey had later recognised his obligation by saying that he had been thinking of fixing up his wife’s two children “with a cash settlement of [their] rights to Marnane Terrace”.23 In short, the Court was satisfied on the evidence that an actual promise of non-revocation underlay the parties’ arrangements.

18	Re Newey (deceased) [1994] 2 NZLR 590 (HC).
19	At 601.
20	At 602.
21	At 592.
22	At 602.
23	At 600.

Discussion

[77]	It is clear that Frank and Chrissy, a few years into their relationship, formed an intention to have mirror wills of the nature they eventually executed in October 2009. It is probable that the enthusiasm and firmness with which Garry and Lesley Quayle encouraged Chrissy and Frank along those lines was an influence. But the manner in which Chrissy and Frank were content to indicate to others for some years that they had followed that lead and in fact executed such wills indicated that they did not view their attention to their will-making as importantly as others may have.

[78]	Chrissy’s diagnosis with bowel cancer in early-January 2009 may well have been the prompt that encouraged Frank and Chrissy to move towards making wills. But the nine months it still took them to take action does not indicate that Chrissy’s illness brought about a significantly more urgent or focused attention on their will- making.

[79]	There is no direct evidence of any discussions between the two leading up to the instructions they gave to Mr Cockroft of a commitment to not revoking their wills once executed. As I have found on the balance of probabilities that they did receive advice from Mr Cockroft as to the entitlement they would have to revoke their wills, it is improbable that at some point very soon after that discussion they moved to a mutual commitment of non-revocation which they then failed to communicate to Mr Cockroft.

[80]	All the discussions which they subsequently had as to their intentions were at least as, if not more, consistent with their trusting each other to act on their intentions rather than making a mutual commitment to non-revocation. The discussions they had are of the very nature referred to by Doogue J in McNeish v McArthur as reflecting “an honorary agreement” or “mutual expectation or desire”.

[81]	I add this in relation to the pleading of the plaintiffs’ claim. Their claim will fail because they have not established that Frank and Chrissy expressly and/or impliedly agreed not to revoke their 2009 wills without the knowledge and agreement of the other. In this judgment, I have focused on the evidence adduced rather than on the plaintiffs’ claim as particularised. Ms Foley has responsibly not objected to matters

proceeding on that basis. However, it is of some significance that the plaintiffs’ pleaded particulars of the non-revocation agreement are largely consistent with the evidence as it unfolded, falling significantly short of particulars which would meet the test for mutual wills under Lewis v Cotton.24 The pleaded particulars state:
(a)	by executing identical wills under which the whole of their estate would be given to the other one absolutely and if the other one did not survive, then to their children and stepchildren …

(b)	by their verbal acknowledgement in the presence of each other and Rochelle Anne Cleary … that each and both of them had agreed and intended to leave their estate to the respective children and stepchildren …

[82]	Self-evidently, the one conversation expressly pleaded (that between Frank, Chrissy and Rochelle Cleary) was alleged only to contain the advice that Frank and Chrissy had “agreed and intended to leave their estate to the respective children and step-children”. Such intentions, while they clearly existed and were communicated, do not equate to commitments of non-revocation.

Outcome

[83]	The plaintiffs’ claim will be dismissed. They are not entitled to the declaration sought.

[84]	Costs must follow the event. I would anticipate that the parties would agree that they should be on a 2B basis, which may also lead to agreement on quantum. If not, costs will be dealt with on the papers, as directed below.

Orders

[85]	I order:

(a)	There is judgment for the defendant.

(b)	The plaintiffs are to pay the defendant’s costs and disbursements. In the event there is disagreement as to quantum, the defendant is to file

24	Lewis v Cotton, above n 1.

and serve within 10 working days a memorandum as to costs and disbursements, including a schedule of calculations to which the plaintiffs are to file and serve any memorandum in response within five working days thereafter (four-page limit in each case).

Osborne J

Solicitors:
Kieran Tohill Law Ltd, Alexandra Scholefield Law, Invercargill AWS Legal, Invercargill