IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE	
CIV-2024-488-24
[2024] NZHC 1879	

UNDER	Part 19 of the High Court Rules 2016	
IN THE MATTER

AND	of the estate of BRIAN ANTHONY WEBB of Whangaruru, Farmer, deceased	
IN THE MATTER	of an application by Amanda Anne Morgan and Thomas Alexander Biss as
administrators of the estate of Brian Anthony Webb for directions as to the interpretation of a will
Applicants	

Counsel:	A Easterbrook for the Applicants	
Judgment:
(On the papers)	10 July 2024	

JUDGMENT OF BLANCHARD J

This judgment was delivered by me on Wednesday, 10 July 2024 at 3 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:	WRMK Lawyers, Whangarei

Re Estate of Brian Webb [2024] NZHC 1879 [10 July 2024]

[1]	The administrators of the estate of Brian Anthony Webb apply to resolve uncertainties created by the drafting of Brian’s will. The application is made under s 3 of the Declaratory Judgments Act 1908 and ss 31 and 32 of the Wills Act 2007.

Background

[2]	Brian died on 19 May 2023. He was never married and had no children.

[3]	He had two brothers, Peter Joseph Webb and Neville John Webb (known as Jackie). Neither of them had any children. Peter died before Brian, on 17 March 2023, and Jackie died after him, on 28 June 2023.

[4]	Brian also had four sisters, Florence Evelyn Billington, Julia Mary Hilliam, Kathleen Patricia Allan and Margaret Dressler. Margaret died on 12 February 2022. Florence, Julia, and Kathleen are his only surviving siblings. All four sisters have children.

[5]	The applicants are also the executors of the estates of Peter and Jackie. The beneficiaries under the wills of Peter and Jackie include their nephews and nieces.

[6]	From the 1970s the brothers operated a partnership known as Webb Brothers Partnership. It was a farming partnership which owned and farmed coastal land at Oakura in Northland. The land is valued at between $9 and $12 million.

[7]	The applicants have put the partnership land up for sale. It is due to sell by auction and tender on 17 and 18 July 2024.

Brian’s will

[8]	Brian’s will is dated 25 September 2015. The relevant parts of the will are:

…

3.	 I GIVE

…

(h)	my Classic Kingswood motor vehicle “AUSABO” to my brothers Jackie and PETER JOSEPH WEBB (“Peter”) but IT IS MY WISH

that if the vehicle is sold the proceeds of sale are to be divided between my six nieces.

(i)	my Bedford horse truck to my nieces RAEWYN DRESSLER and
 RITA DRESSLER;

(j)	my share of the Caprice car CEZ526 and Statesman motor vehicle to my brothers Jackie and Peter.

(k)	my hand tools to Jackie and Peter provided that they stay on the farm.

(l)	my cattle and sheep to Jackie and Peter however if they are sold then the proceeds of sale are to be divided equally between my nieces and nephews. I DIRECT that Jackie shall be entitled to make the final decision regarding the sale of stock.

(m)	the proceeds of sale of 20 cattle following the first spring sale after my death to be divided equally between my nieces and nephews

(n)	my share of the bank accounts for the Webb Brothers Partnership to Jackie and Peter;

(o)	my remaining interest in the Webb Brothers Partnership to such of Jackie and Peter who shall survive me and if more than one in equal shares, subject to them assuming liability for my share of the debts of the business.

…

4.	 I GIVE to such of Jackie and Peter who shall survive me a life interest in my share of the farm properties and beach property which we own as tenants in common in equal shares, subject to them paying the rates, insurance premiums, taxes, mortgage interest and principal repayments and other outgoings.
By way of identification the properties are as follows:
(a)	The Purekau block comprising approximately 1200 acres;
(b)	The home farm comprising approximately 1037 acres;
(c)	The “High Chaparrel” block comprising approximately 180 acres;
(d)	The Ngahau Bay property comprising approximately 10 acres.

4.2	 MY wishes in respect of the properties in 4 above are as follows but subject to the consent of Jackie and Peter:

(a)	 PUREKAU BLOCK:
(i)	there is very valuable timber on this block but only limited amounts are able to be cut. I would like my share of the timber to be given to the Whangaruru Iwi for the purpose of building houses for them, subject to it never being commercialised. I appoint PUKE
 HAIKA, ANTHONY BARBER and MARY BARBER to administer this on behalf of the Iwi.

(b)	following the deaths of myself, Jackie and Peter I would like this property to be subdivided into ten acre blocks, subject to the necessary Resource Consents, and a block to be given to each of my nieces and nephews.

(b)	 “HI CHAPARREL” BLOCK:
This block is in three Certificates of Title which I would like to give to such of my sisters MARGARET JOSEPHINE DRESSLER, JULIE
 MARY	HILLIAM,	 KATHLEEN	PATRICIA	ALLEN	and
 FLORENCE EVELYN BILLINGTON who shall survive me and if more than one in equal shares.

(c)	 NGAHAU BAY PROPERTY:
I would like this property to be kept in the family and in that regard I would like it to be put into a family trust. It is my wish that the property be rented at the trustees’ discretion to pay outgoings and any surplus on an annual basis be distributed between my nieces in equal shares. I would also like the property to be made available for two weeks of each year to the Priests or Nuns from the Catholic Church.
It is my intention to build a flat under the Ngahau house and it is my wish that the rent from this would be paid annually to my grand nieces in equal shares.
(d)	 HOME FARM:
I would like a section of land to be given to the Catholic Church for the sole purpose of building a Church for the District. My trustees would decide the location and the subdivision costs would be paid by my Estate.

5.1	 I DIRECT my trustees to hold the rest of my estate on these trusts:

5.2	 TO pay my debts, my funeral and monumental expenses, my trustees’ administration expenses and any duties payable on my estate.

5.3	 TO transfer the residue
…

[9]	The applicants have advised that the gifts made in the clauses immediately preceding cl 3(o) all relate to partnership assets.  Further the properties specified in  cl 4 are all partnership assets. Clause 4.2 of the will sets out a list of wishes in respect of those same properties. (There is no cl 4.1.)

[10]	Clause 5.3 is obviously unfinished. This error was not picked up when the will was signed. The solicitor’s file contains no evidence regarding what Brian intended in relation to the residue.

[11]	The applicants have advised that Brian is entitled to 11/24ths of the partnership property. This is made up of his own 1/3 share of the partnership, together with part of Peter’s share in the partnership, which he received under Peter’s will.

[12]	The applicants have identified the problems arising from cls 3(o), 4 and 5.3 as follows:

(a)	Clause 3(o) makes a gift of Brian’s “remaining interest” in the partnership to his surviving brothers. It is unclear whether the “remaining interest” includes the partnership land.

(b)	The language used in cl 4.2 makes it unclear whether it expresses mere wishes or enforceable obligations.

(c)	Clause 5.3 is incomplete, so anything falling into residue must be dealt with under the intestacy rules in pt 3 of the Administration Act 1969.1

[13]	The applicants have filed very helpful submissions in relation to the application. They are neutral in terms of the outcome of the application. The submissions simply outline the issues and relevant law for the Court.

[14]	No other parties have filed submissions. All interested parties were served and the time for response has expired. None of them have taken any position in relation to the application.

Does cl 3(o) deal with the partnership land?

[15]	The applicants identify two potential interpretations of the words “my remaining interest” in cl 3(o). The first is that includes the partnership land. The second is that only relates to other partnership assets.

[16]	There are two main arguments in favour of the interpretation that “my remaining interest” in the partnership includes the partnership land:

(a)	The plain meaning of the words indicates that it includes the land. The land was owned by the partnership at all relevant times. Brian had an interest in the land through the partnership.

1	Administration Act 1969, s 79.

(b)	There was very little else in the partnership that Brian could have been referring to in the clause. The immediately preceding clauses dealt with other partnership assets such as tools, vehicles, stock and cattle and money in the bank. If the land is not included in cl 3(o), it is unclear what else could be, although partnership accounts have not yet been completed.

[17]	These arguments have some force but, in my view, the opposite interpretation is the correct one for the following reasons:

(a)	Clause 4 gives a life interest to Jackie and Peter in the exact same land. This is completely inconsistent with an outright gift of the land to them.

(b)	The fact that nothing else would be caught by cl 3(o) is not determinative. It would not be unusual for a drafter to insert a clause to cover anything not specifically mentioned.

What is the effect of cl 4.2?

[18]	The applicants seek guidance on how they should interpret cl 4.2. The opening words of the clause are, “My wishes in respect of the properties in 4 above are as follows but subject to the consent of Jackie and Peter…”. These words suggest that the clause is not binding on the applicants. They merely set out Brian’s wishes and are not enforceable. Jackie and Peter did not consent to any of the matters in cl 4.2. Despite these points, some beneficiaries have indicated to the applicants that they believe that parts of the clause are enforceable. Accordingly, the applicants seek clarification on this point.

[19]	It is correct that some of the language in cl 4.2 is expressed in language that is capable of being construed as mandatory. However, the clause needs to be considered as a whole and it also needs to be considered in context.

[20]	The reason the clause could only set out Brian’s “wishes” and was expressed to be subject to the consent of Jackie and Peter was that the land it related to is all partnership land. This meant it was not possible for Brian to act unilaterally in relation

to the land. He needed the agreement of his partners. Thus, the most he could do in his will was indicate what he hoped might happen in relation to the land.

[21]	I therefore conclude that cl 4.2 is not enforceable against the estate.

Conclusion

[22]	For the above reasons, I conclude that:

(a)	clause 3(o) does not deal with the partnership land; and

(b)	clause 4.2 is not enforceable against the estate.

[23]	As Jackie and Peter are no longer living, cl 4 does not apply. Therefore, Brian’s interest in the partnership land falls into the residue and is subject to the intestacy rules.

[24]	The applicants also seek an order that their costs for the application be payable from the estate on a solicitor/client basis. I order accordingly.

Blanchard J