MORAIS v VENIS [2022] NZHC 522

MORAIS v VENIS [2022] NZHC 522 [21 March 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2021-409-93[2022] NZHC 522UNDER the Declaratory Judgments Act 1908IN THE MATTER of the Wills Act 2007BETWEEN COLIN ANTHONY FIDELIS MORAISPlaintiffAND JOSEPHINE DAPHNE VENIS and RANGIRUTH TIAHO BOOTSMA-HEYDefendantsAND ROMAN CATHOLIC BISHOP OF THEDIOCESE OF CHRISTCHURCHInterested PartyHearing: 8 March 2022Appearances: G A Paine for PlaintiffA M Corry for DefendantsA L Bodman and E R McNally for Interested PartyJudgment: 21 March 2022JUDGMENT OF MANDER JThis judgment was delivered by me on 21 March 2022 at 3 pmpursuant to Rule 11.5 of the High Court Rules 2016Registrar/Deputy RegistrarDate: .[1] Ms Carol Morais (Carol) passed away on 28 June 2016. The major asset ofher estate was her home situated in Bishopdale, Christchurch (the property). In herwill, Carol directed the property be gifted to the Sisters of Mercy. However, they hadno use for it. In such an event, her will further provided that it was to be left to theRoman Catholic Bishop of the Christchurch Diocese (the Bishop).[2] Mr Colin Morais (Colin) is Carol's brother. He claims the property has notbeen distributed in accordance with the terms of the will and his sister's wishes. Hesays that it should pass to him. He has brought proceedings seeking declarations thatCarol's gift to the Bishop was a contingent gift, subject to a term relating to the use ofthe house which has failed, and that the Bishop holds the property on trust for him.Background[3] Carol immigrated to New Zealand with her family in 1994 and settled inChristchurch. It appears her parents became estranged and her father returned toMalaysia before passing away in 2007. Carol and her mother remained living togetherat the Bishopdale property which she inherited through survivorship after her mother'sdeath in 2014. Carol was a devout Catholic. In addition to the property, the terms ofher will also provided numerous bequests to the Catholic Church for various definedpurposes. It is clear that Carol placed great store on her religious values and beliefs.This is apparent not only from her will but from the documented wishes she expressedregarding the disposition of the property and her cherished personal possessions.The will[4] Carol's last will was executed on 21 August 2015 and was admitted to probateon 2 August the following year (the will). It provided for the appointment of two ofCarol's closest friends to be her executors and trustees, the defendants, Ms JosephineVenis and Ms Rangi Bootsma-Hey (the executors). The will provides for thedisposition of the property in the following way:5. I DIRECT that my property I currently reside in situated at 238aHarewood Road, Bishopdale, Christchurch be left to the SISTERSOF MERCY, Christchurch for the exclusive use of their Sisters. IFthe SISTERS OF MERCY shall no longer require the property orhave a use for it. I DIRECT the property to be left to the ROMANCATHOLIC BISHOP OF THE DIOCESE, Christchurch for theexclusive use of their Canons.5.1 I EXPRESS the wish that the property is not to be sold.6. IF my property at 238a Harewood Road, Bishopdale are not able tobe distributed according to my wishes, I GIVE the house to mybrother COLIN ANTHONY FIDELIS MORAIS, of Timaru, tokeep for himself to delegate according to my wishes recorded in theenvelope marked "CAROL'S WILL AND PERIPHERALMATTERS".[5] Ms Indira Sirisena was Carol's lawyer who assisted her with the preparation ofthe will and was engaged by the executors to prepare the estate for distribution inaccordance with its terms. Ms Sirisena knew Carol reasonably well, having been herlawyer for some 20 years. On 29 November 2016, she was informed by the Sisters ofMercy they would be unable to use the property and the gift was declined. Inaccordance with the terms of the will, the property was then offered to the Bishop. On11 January 2017, the Bishop informed the executors the bequest of the property wasaccepted and that the diocese would "uphold the intent of the will at every possibleavenue".Testamentary promise claim[6] In July 2017, Colin filed a claim under the Law Reform (TestamentaryPromises) Act 1949 alleging he and his sister had made mutual promises that thesurviving sibling would enjoy a life interest in the home of the other and that Carolmade a verbal agreement that, if she predeceased him or entered a rest home, he couldlive in the property for the rest of his life. On 12 December 2019, the Family Courtdismissed Colin's claim. Judge Lindsay concluded that no promise had been made byCarol and that the estate fell to be distributed in accordance with the terms of the will.1Transfer to Diocese[7] The property was transferred to the Diocese on 20 March 2020, after an appealagainst the Family Court's decision was formally abandoned by Colin earlier that1 Morais v Venis [2019] NZFC 10322.month. There matters rested until in November 2020 the property was let to a familyseeking rental accommodation pending the completion of their new home. This wasexpected to be completed by July the following year, although delays resulted in thetenancy not ending until a year later in November 2021.The application for declaratory relief and the parties' respective positionsColin's claim[8] It appears that in late March 2021, after Colin became aware of the use to whichthe property was being put, he commenced proceedings against the executors. Colinclaims the gift of the property to the Bishop was a contingent gift that had not beenperfected. He says, because it was not being used in accordance with the terms of thewill, for the exclusive use of the diocese's "Canons", the gift had therefore failed.Such an outcome, he argues, should result in the property being given to him. InAugust 2021, Associate Judge Paulsen directed that the Bishop be served with theproceeding as an interested party, although this was not effected until 4 October of thatyear. Both the executors and the Bishop oppose Colin's interpretation of the will.[9] Colin's claim for declaratory relief rests on two propositions. First, the gift tothe Bishop was subject to a condition that the property could only be used by its"Canons". Second, by permitting the property to be let to a family, the Bishop had,by his conduct, disclaimed or abandoned the gift, he having found the fulfilment ofthe condition to be too onerous. As a result, cl 6 of the will came into effect becausethe property had not been able to be distributed according to Carol's wishes and wastherefore required to be given to Colin "to keep for himself". Colin argued the Bishopnow held the property on trust for him, and that it was to be dealt with at his direction.The executors' and Bishop's opposition[10] Both the executors and the Bishop reject Colin's interpretation of the will andthat the use to which the property has been put does not accord with its terms. Theyargue the effect of the will is to gift the property absolutely to the Bishop, albeit withaccompanying wishes that it be used for the purposes of the Catholic Church and notsold, and that title has passed to the Bishop in the wake of Colin's unsuccessfullitigation in the Family Court. Further, they say that the will does not create anycondition precedent that is required to be completed in order to perfect the gift.Interpretation of a will generally[11] The fundamental task when constructing a will is to ascertain the intention ofthe will-maker.2 Rules, canons or principles of construction are simply an aid todetermining the intention of the will-maker.3 The starting point on any question ofinterpretation is the words of the will-maker.4 In addition, if Carol's will does giverise to ambiguity or uncertainty, external evidence can be utilised to interpret the wordsof the will, in order to determine her testamentary intentions. Section 32 of the WillsAct 2007 provides:32 External evidence(1) This section applies when words used in a will make the will, or partof it,—(a) meaningless; or(b) ambiguous on its face; or(c) uncertain on its face; or(d) ambiguous in the light of the surrounding circumstances; or(e) uncertain in the light of the surrounding circumstances.(2) The High Court may use external evidence to interpret the words inthe will that make the will or part meaningless, ambiguous, oruncertain.(3) External evidence includes evidence of the will-maker's testamentaryintentions.(4) The court may not use the will-maker's testamentary intentions assurrounding circumstances under subsection (1)(d) or (e).2 Perrin v Morgan [1943] AC 399, [1943] 1 All ER 187 (HL) at 190 applied in Re Thompson [1993]1 NZLR 1 (CA); Re Beckbessinger [1993] 2 NZLR 362 (HC); and Wilson v Davidson [2017]NZCA 468.3 Re Beckbessinger, above n 2, at 371 (HC)4 Lindsay Breach Nevill's Law of Trusts, Wills and Administration (online 13th ed, Lexis Advance,2018) at 481.Meaning of the term "Canons"[12] A preliminary issue which garnered some attention was the meaning of theterm "Canons". Clause 5 of the will provides that, in the event of the Sisters of Mercyno longer requiring the property or having a use for it, the property is to be left to theBishop "for the exclusive use of their Canons". Words and expressions contained ina will are generally given their natural and ordinary meaning.5 It is presumed thattechnical words, which canon arguably is, are given their technical meaning.6[13] The Bishop called evidence from Monsignor Brendan Daly, who holds theposition of Judicial Vicar of New Zealand and is an expert in canon law. His opinionwas that the term "canon" can be used in two ways. First, as a reference to a positionwithin the church. He considered a canon in the Catholic Church would be understoodby laypersons to be a priest or member of the clergy working in the local diocese.Second, the term can be used as a reference to a fundamental body of ecclesiasticallaws of the church. Monsignor Daly's evidence was not disputed. I am satisfied themeaning of "canon" is sufficiently uncertain for me to consider this external evidenceunder s 32.[14] I consider, from the context of cl 5, the use of the word "Canons" in that partof the will is intended to be a reference to priests or similar members of the clergysuch as a curate or seminarian. Carol's will provides, in the first instance, for theproperty to be left to the Sisters of Mercy "for the exclusive use of their Sisters".Should that not prove possible, cl 5 then provides what is effectively a mirror bequestthat the property be left to the Bishop "for the exclusive use of their Canons". Theterm "Canons" in the second part of the clause has been used in the same way the term"Sisters" was employed earlier, and is intended to refer to persons holding a religiousposition within the diocese, such as its priests. In any event, while some focus wasgiven by the parties to this issue, I consider little turns upon it.5 Re Williams [1980] 1 NZLR 300 (CA); and Re Thompson, above n 2 cited in Breach, above n 4.6 Falkiner v Commissioner of Stamp Duties [1973] AC 565, [1972] 2 NSWLR 839 (PC). See ReCook [1948] Ch 212, [1948] 1 All ER 231.The meaning of "exclusive use"[15] Colin's argument regarding the effect of cl 5 of the will is based on the premisethat the term "exclusive use" places a restriction on how the sisters of the Sisters ofMercy or the canons of the Diocese can put the property to use, and that, in the absenceof these persons physically occupying or living in the property, the gift must fail. Iconsider this to be an unnecessarily narrow interpretation of cl 5 which is notconsistent with the terms of the clause when read as a whole7 and its words placed inproper context. There are a number of features of this part of the will that lead me tothis conclusion.[16] The direction that the property be left to the Bishop for "the exclusive use" ofits canons is not limited to a particular use of the property, such as its occupation oruse as accommodation. The will-maker's deployment of the term "exclusive" is forthe purpose of reserving the benefit of the gift to a particular group, but it does notqualify the "use" to which the property can be put in order to benefit the diocese'scanons, nor does it impose any qualification on the way in which the property's usemay benefit them. This is reinforced when regard is had to the earlier part of the clausewhich concerns the Sisters of Mercy.[17] Clause 5 gives precedence to the Sisters of Mercy and bequests the property tothat organisation, for the exclusive use of their sisters. The same wording is used forthe purposes of the gift to the Bishop. However, the wording of the contingency whichfollows the gift to the sisters is enlightening. It provides that if the Sisters of Mercyno longer require the property or "have a use for it", it is to be left to the Bishop. Theemployment of the words "have a use for it" indicate the exclusive use to be made ofthe property is not limited to any particular use such as occupation. Here, the Sistershad no use for the property and it passed to the Bishop for the exclusive use of thediocese's canons. There is no reason why the same term — "exclusive use" — shouldbe given any narrower meaning when the term is utilised in the same way in the latterpart of the same clause of the will, nor why it ought not encompass the multiple waysin which the property could be used to benefit the canons.7 There is a general principle that a will is to be read as a whole. See Tanner v New ZealandGuardian Trust Co Ltd [1992] 3 NZLR 74 (CA), Breach, above n 4.[18] Clause 5.1 of the will expresses Carol's wish that the property is not to be sold.However, beyond that expressed preference, the terms of the will disclose no limitationon the use to which the property could be put for the benefit of the Sisters of Mercy'smembership or the Bishop's canons.Carol's wishes[19] Carol's will provides directions regarding her headstone, the contents of theproperty, her personal possessions and arrangements for her pet cat. It also provides,in the event the property is not able to be distributed to the Sisters of Mercy or theBishop, it is to be given to Colin. In relation to these particular directions anddispositions, her will refers to the wishes she recorded and left in an envelope marked"Carol's Will and Peripheral Matters". These wishes are not referenced in cl 5, whichgoverns the disposition of the property to the Sisters of Mercy and the Bishop.However, the parties addressed Carol's separately documented wishes in support oftheir respective cases.[20] Carol's separate wishes comprise three documents which came intoMs Sirisena's possession after Carol's death. The documents comprise her wishes asexpressed "to my trustees and to Ms Indira, my lawyer"; Carol's wishes "in relationto [the property]"; and her wishes "to Colin". They are instructive insofar as theyexhibit Carol's strong desire that the Catholic Church should receive the benefit of theproperty, that it should not be sold, and that she does not want Colin to receive it.These sentiments are expressed in various parts of the documents recording Carol'swishes. She recorded the following wishes to the executors and Ms Sirisena:1. You must do your very best for the property at 238a Harewood Road togo to the Sisters of Mercy or the Catholic Diocese of Christchurch. I donot wish for Colin to have this property. I have many reasons, most ofwhich are known to you all. Note: The property in Timaru waspurchased by Colin from moneys given by myself on behalf of ourmother, father and from me. Colin was also previously given depositsfor three properties ($49,000) during the time my father & mother wereliving.2. I wish the Sisters of Mercy or the Catholic Diocese to get the housebecause this house belonged to my father Ferdinand Morais and MotherAlice Marie Netto Morais. Especially in the time of my mother's life thehouse was a house of Prayer, Peace and Sanctity. I strongly wish for thatto continue.[21] Carol provides some detail in this document as to why she wished to excludeColin. Further, feelings of antipathy Carol held towards her brother were alsoexpressed to Ms Sirisena and to both executors. Carol expresses the wish that her petcat and a collection of soft toys and a doll, which were obviously items precious toher, remain with the house if possible. In the event that cannot be arranged, provisionis made for the cat's care and "if Colin can look after [the soft toys and doll], notchucked somewhere, then Colin may have them", but her preference was to leave themat the property. Carol also requests that a photograph of her mother and father be keptand displayed somewhere in the house "to honour them". She describes her motheras a "pious, prayerful, devoted Catholic Mother, wife, friend, and a faithful of thechurch".[22] In the document expressing her wishes in relation to the property, she states:3. The property must be for the use of the Sisters and not to house anyoneelse in it. The reason I wish this to be honoured is because this housebelonged to my father Ferdinand Morais and mother Alice Marie NettoMorais. Especially in the time of my mother's life the house was a houseof Prayer, Peace and Sanctity. I strongly wish for that to continue.[23] Carol then sets out her wishes regarding the retention of certain items at theproperty, including pieces of furniture, a piano and organ, various religious items andthe soft toys and doll, together with the display of the photograph of her mother andfather. She expresses the wish that "the property must not be sold" and for her cat tobe taken care of. Finally, Carol directs the Sisters of Mercy, should they be unsure ofany of her instructions to talk to her "dear friend and trusted lawyer", Ms Sirisena.Ms Sirisena's evidence was very clear that Carol, as a devout Catholic, wanted tobenefit the church with her house and she talked extensively about how she could dothat. She talked about the Sisters of Mercy and discussed leaving it to the church, buther "emphasis", according to Ms Sirisena, was always that she did not want Colin tohave the property".[24] In Carol's wishes to Colin, she gives permission to him to take some of herpersonal effects and that, while her preference is to leave the soft toys and doll in thehouse, he may have them if he thinks he will look after them.Carol's testamentary intentions[25] It is plain that Carol wanted the property to be transmitted to the CatholicChurch. Her first preference was for the property to be left to the Sisters of Mercyand, in the absence of their having a use for it, to the Bishop for the benefit of thediocese's priests. As is also apparent from Carol's documented wishes, in furtheranceof her strong Catholic faith, her desire was for the property to be retained either by theSisters of Mercy or by the Bishop to be personally utilised by the sisters or thediocese's canons. However, Carol, who was a lawyer by training and who prepared adraft of her will which, after discussion with Ms Sirisena, formed the basis of its finalversion, did not incorporate those separately recorded wishes as terms of the will itself,nor were they included as a clear and explicit condition of the gift.[26] I consider it tolerably clear that, while Carol had given considerable thought tohow she would like the property to be used by the Catholic Church after her death inorder to benefit the Sisters of Mercy and the priests of the diocese, she did not mandateany particular use of the property in her will as a condition of the bequest on either theSisters of Mercy or the Bishop. The fact she chose not do so appears to accord withthe executors and Ms Sirisena's understanding of her testamentary intentions, that heroverarching concern and heartfelt preference was for the asset to benefit either theSisters of Mercy or the local diocese and their sisters and priests.[27] The only wish that Carol expressed in her will was that the property not besold. The property has not been sold. This statement at cl 5.1 of the will is anexpression of Carol's strong wish but it does not constitute either a condition of thebequest or a binding obligation on the executors or the recipients of the gift. Ifanything, it is indicative of Carol's understanding that sale is an option available to thenominated recipient, albeit one that she strongly wishes not be resorted to in light ofthe wishes she had separately documented.[28] Clause 6 of the will provides that if the property is not able to be distributed inaccordance with "my wishes", the house is to be given to Colin. Unlike in other partsof the will, the reference to "wishes" is not linked to those contained in the envelopemarked "Carol's Will and Peripheral Matters" and, when read in context, must beinterpreted as the wishes expressed in the preceding cl 5 that also concern the property.I consider cl 6 would only be triggered if both the Sisters of Mercy and the Bishopconcluded they had no use for the property and that it could not be used to benefit theirrespective sisters or canons.No condition precedent[29] Colin's argument in support of his application for declaratory relief relies uponthe bequest of the property to the Bishop being a contingent gift. Clearly, whateverobligations may arise from the Bishop's acceptance of the gift and the use of theproperty, they did not constitute a condition precedent. Such a condition requires someprerequisite step being completed or state of affairs achieved before a gift will vest,such as the requirement that a certain age is attained before a gift takes effect.8 Here,as was submitted on behalf of the Bishop there is no prior condition relating to theproperty or its use that is required to be discharged before it can be transferred to thediocese's legal ownership. The executors, upon receiving the diocese's advice of itsacceptance of the gift and of its intention to "uphold the intent of the will", wereobliged to transmit the property to the Bishop in accordance with the terms of cl 5.Was the gift disclaimed by the Bishop's use of the property?[30] Colin's argument therefore devolves to a submission that the Bishop'ssubsequent use of the property amounts to a disclamation of the gift which shouldresult in it being held for his benefit. Once a beneficiary has accepted a gift by takinga benefit conferred by it, he or she may no longer disclaim it until he or she is at libertyto disclaim. If a gift is made on condition, the legatee can take the gift and,subsequently upon finding the condition too onerous, abandon the gift and be free ofthe condition.9[31] If any issue arises as to the Bishop's use of the property, it may be as to whetherit may arguably amount to a condition subsequent that the property be used for canons8 See Breach, above n 4, at 481.9 Re Hodge [1940] Ch 260 cited in Breach, above n 4, at 469.exclusively, although I make no finding to that effect. In Bennett v Bennett, PanckhurstJ found:10 a condition subsequent is one which after the vesting of the gift puts an endto the gift (for example where a sum is payable from time to time subject tocontinued widowhood).[32] It may be that the gift to the Sisters of Mercy was subject to a conditionsubsequent insofar as it was dependent upon them having a use for the property.However, it is not apparent that, once the property was transmitted to the Bishop, itsretention was subject to the existence of any ongoing state of affairs or would beextinguished by any particular event. From my construction of the will, I have alreadyfound that Carol did not mandate any particular use of the property, nor do I considershe intended to make the Bishop's continued ownership conditional on its occupationby canons. In any event, the evidence shows the Bishop has sought to adhere toCarol's stated wishes to use the property to benefit its priests in accordance with hertestamentary intention.[33] The uncontested evidence was that the Diocese's initial intention andpreference upon obtaining title to the property was to use it to house one of its priests,notwithstanding their view the property came with clear title. A number of attemptswere made to do so but, for various reasons, a series of priests to whom the propertywas offered were unable to take up the opportunity. The house was also offered to astaff member of the diocese on a temporary basis while waiting for a new house to bebuilt but this was declined. It was against those circumstances, with the propertyhaving remained empty for some months and the Bishop incurring the expense ofrates, insurance, security monitoring, repairs and garden maintenance, that it wasoffered to a young couple with two small children looking for rental accommodationwhilst their new home was being built.[34] Mr Terence Foote, the diocese's property manager, gave evidence that theletting of the property to this family generated a rental of $400 per week. These fundswere applied to the Bishop's general account which is used in part to fund housing forretired priests. Because the rental was being used for such a purpose, it was considered10 Bennett v Bennett HC Christchurch CP99/00, 10 April 2001.the property was being used for the benefit of the diocese's priests and Carol's wisheswere being honoured. Some $20,600 was received during the tenancy. These fundshave been used to support a range of activities, including hospital, prison and pastoralchaplaincy, the education and "formation" of diocesan priests, and the payment ofrentals for retired priests of the diocese.[35] Mr Foote's evidence was that it had been hoped, at the conclusion of the fixedterm lease of the property, it would be made available as a residence for a priest.However, in the absence of any priests needing to be accommodated at the time itbecame vacant, this has not proved possible. The property is currently being used bymembers of what is described as a "Mission Team" that comprise full time volunteerswho commit to 11 months of mission work while training and living in the communitytogether. When this comes to an end, Mr Foote advised that the possible use of theproperty for the purpose of housing a priest will again be reviewed. Mr Footeconfirmed the Bishop remains committed to giving effect to Carol's wishes and hastaken no steps to sell or dispose of the property.[36] It follows that the Bishop has not disclaimed the gift, nor has the use to whichthe property been put conflicted with Carol's testamentary intention to benefit thediocese's priests. Its use has in various ways furthered their pastoral work in thecommunity and provided them with support. This, in turn, is no doubt to the overallbenefit of the Catholic Church in Christchurch, to which its priests are dedicated andseek to serve and of which they are a part, as is the Bishop himself, to whom theproperty was directed to be left and who, of course, is himself a priest or canon.Conclusion[37] In summary, I do not consider cl 5 of Carol's will imposes a condition that theproperty must be exclusively occupied by the diocese's priests, that was required to bemet in order for the property to be transmitted to the Bishop or retained by him. Theterm "for the exclusive use of their Canons" did not limit the ways in which theproperty could be used for their benefit. I find the Bishop has endeavoured to followthe wishes of Carol after the property was transmitted to him when the gift wasdeclined by the Sisters of Mercy and that his efforts to do so are ongoing. There wasnothing invalid in the executors' decision to transmit the property to the Bishop uponreceiving his advice that the property would be accepted and of his commitment touphold the intent of the will.[38] I do not consider the use to which the Bishop has put the property, including itbeing let on a temporary basis for a finite period when it was otherwise unable to beutilised, to generate funds which have contributed to the support provided to its priests(both active and retired) and their activities within the diocese, breached the terms ofthe bequest. Nor do I consider the use to which the property has been put can beinterpreted as an intention to disclaim the gift.[39] Colin's application for declaratory judgment must therefore fail.Abuse of process, estoppel and inequity[40] For completeness, I mention that both the executors and the Bishop raisedalternative defences to Colin's claim, arguing variously that it amounted to an abuseof process and that he should be estopped from pursuing a claim against the diocesein relation to the property. It was submitted that, if a claim contesting the will was tohave been brought, it should have been made some years ago, at the time Colin broughtproceedings under the Law Reform (Testamentary Promises) Act in the Family Court.When that litigation concluded and an appeal was abandoned, no notice was providedof any further claim in respect of the property, and the Bishop accepted its transferfrom the executors. It was submitted that, by so doing, he has incurred costs and thatit would be unjust to order any relief against the Bishop in those circumstances.[41] A similar argument was made in reliance on s 51 of the Administration Act1969, which provides that a court may find it inequitable to grant relief when theperson from whom such relief is sought, is the recipient of a distribution of any assetsforming part of an estate of a deceased person in good faith, and has altered theirposition in the reasonably held belief that the distribution was properly made andwould not be set aside.[42] For their part, the executors also referred to the rule in Henderson v Hendersonwhich provides, where a matter is the subject of adjudication by a court of competentjurisdiction, the parties to that litigation are required to bring forward their whole caseas part of the subject in contest.11 It is said the plea of res judicata applies not only inrespect of points raised for the Court's determination and required by the parties toprovide a judgment, but also to every point "which properly belonged to the subjectof the litigation, and which the parties, exercising reasonable diligence may havebrought forward at the time". Essentially, that claims cannot be undertaken byinstalment. It was argued the present claim could have been advanced in 2018, whenColin brought his claim of there having been a testamentary promise. Carol'stestamentary intentions were closely examined in the course of the Family Courtproceeding and it was submitted that, if there was to be any challenge to theinterpretation of the will, it should have been raised at that time.[43] In the absence of evidence that the Bishop has altered his position to hisdetriment on apparent reliance on the litigation having come to an end, I doubt whetherthe claim of estoppel is tenably available. Nor is it readily apparent that he has alteredhis position, at least to his prejudice by having accepted the gift in order to be able torely on s 51 of the Administration Act. I accept there are some grounds to concludethe present claim represents something of a second bite of the cherry given the delayin bringing this proceeding. However, that said, it appears the present claim fordeclaratory relief has been sought in response to the Bishop letting the property to afamily with no obvious connection with the diocese or the functions of its priests. Ialso note that Judge Lindsay in the Family Court expressly declined "to delve into theinterpretation of the will".12[44] Having regard to my findings regarding the merits of the proceeding, it is notnecessary for me to come to any concluded view regarding these alternative defencesput forward by the executors which, as a result, are moot.[45] Finally, the Diocese pleaded indefeasibility of title as an affirmative defence toColin's claim. This was largely raised in response to his pleading that the executorsought to have placed a caveat on the title of the property for his benefit. However, that11 Henderson v Henderson (1843) 67 ER 313 (Ch), as cited by the Court of Appeal in Faloon vPlanning Tribunal at Wellington [2020] NZCA 170 at [2].12 Morais v Venis, above n 1, at [15].allegation was not pursued in Colin's amended pleading, and any such relief to thateffect was not ultimately sought. For completeness, I note that the property wastransferred to the diocese free from any conditions. The dismissal of Colin's claimremoves any argument he has any contingent interest in the property.Result[46] The claim for declaratory judgment is dismissed.Costs[47] Colin is legally aided. Given this fact, the question of costs appears redundant.However, if the parties wish to be heard on the issue, they may file and exchangememoranda (maximum three pages).Solicitors:Everist Gilchrist Lawyers, AshburtonPier Law Ltd, ChristchurchCavell Leitch, Christchurch