WELLS V MORI HC NWP CIV 2007-443-000217
The plaintiff established on affidavit that the deceased promised him the residue of the estate in return for his meeting caregiver costs and that the $100,000 bequest to Ms Verney breached that promise; with defendants abiding and Ms Verney properly served but not appearing, the Court, pursuant to s3(3)(a) of the...
Source-derived case information.
- Citation
- openlaw-b752eab9_e203_4a80_b45a_676b8d811230.pdf
- Parties
- Plaintiff: Robert Graeme Wells; Defendant: Francis Roger Mori and Nikola Jure Marinovich, as executors and trustees of the estate of Robert Ernest Wells; Affected Third Party/legatee: Moira Verney
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 13 June 2007
- Procedural Posture
- Civil Law Reform (testamentary Promises) Act 1949 / Judgment Following Case Management Conference
- Outcome
- Judgment entered for the plaintiff; relief granted under the Law Reform (Testamentary Promises) Act 1949.
- Legal Topics
- Testamentary Promises, Enforcement of Oral Promises, Service of Process, Default Judgment / Judgment in Absence
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robert Graeme Wells
Plaintiff
Francis Roger Mori and Nikola Jure Marinovich, as executors and trustees of the estate of Robert Ernest Wells
Defendant
Moira Verney
Affected Third Party/legatee
Procedural Posture
Civil Law Reform (testamentary Promises) Act 1949 / Judgment Following Case Management Conference
Legal Issues
- 1 Whether the deceased made a testamentary promise to the plaintiff to leave the residue of his estate in return for the plaintiff meeting caregiver costs
- 2 Whether the $100,000 bequest to Moira Verney breached that agreement and is recoverable under the Law Reform (Testamentary Promises) Act 1949
- 3 Whether judgment should be entered when defendants abide and the affected legatee was properly served but did not appear
Ratio Decidendi
The plaintiff established on affidavit that the deceased promised him the residue of the estate in return for his meeting caregiver costs and that the $100,000 bequest to Ms Verney breached that promise; with defendants abiding and Ms Verney properly served but not appearing, the Court, pursuant to s3(3)(a) of the Law Reform (Testamentary Promises) Act 1949, vested $100,000 in the plaintiff and entered judgment for the plaintiff.
Court Disposition
Judgment entered for the plaintiff; relief granted under the Law Reform (Testamentary Promises) Act 1949.
Orders
- Plaintiff is to have the relief sought in paragraphs A and C of the prayer for relief in the statement of claim dated 1 May 2007.
- The sum of $100,000 is vested in the plaintiff pursuant to s3(3)(a) of the Law Reform (Testamentary Promises) Act 1949.
Full Case Text
Judgment text and source record
1 paragraphs
WELLS V MORI HC NWP CIV 2007-443-000217 13 June 2007IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY CIV 2007-443-000217BETWEEN ROBERT GRAEME WELLS Plaintiff AND FRANCIS ROGER MORI AND NIKOLA JURE MARINOVICH, AS EXECUTORS AND TRUSTEES OF THE ESTATE OF ROBERT ERNEST WELLS Defendant Hearing: 12 June 2007 Appearances: S W Hughes for Plaintiff K R Pascoe for Defendants Judgment: 13 June 2007JUDGMENT OF COOPER JThis judgment was delivered by Justice Cooper on 13 June 2007 at 11.30 a.m., pursuant to r 540(4) of the High Court Rules Registrar/Deputy Registrar Date: Solicitors: Nicholsons, PO Box 68, New Plymouth Quin Law, PO Box 4620, New Plymouth Copy to: S W Hughes, PO Box 8213, New Plymouth[1] The plaintiff sues the defendants as executors and trustees of the estate of his late father, Robert Ernest Wells. The claim is made under the Law Reform (Testamentary Promises) Act 1949 and seeks an order pursuant to s 3(3)(a) of the Act vesting a sum of $100,000 in the plaintiff. [2] The matter was listed for a case management conference on 12 June 2007. I heard Ms Hughes, for the plaintiff by telephone. Ms Pascoe was present in person for the defendants. As is appropriate, the defendants abided the decision of the Court. [3] The person affected by the relief sought in the statement of claim was one Moira Verney, who stood to receive a bequest of $100,000 under the late Mr Wells' last will and testament. On 4 May 2007 Lang J made an order that Ms Verney be served at the address of her solicitors, Messrs Till Henderson King. An affidavit on the file, sworn by Sonia Patricia Miles, satisfies me that service was effected on Ms Verney in accordance with Lang J's order. [4] Ms Verney has taken no steps and was not represented at the conference on 12 June. [5] In his statement of claim the plaintiff pleads that Ms Verney had acted as the primary care-giver for the testator from September 2004 until his death on 25 December 2006, when he was 101 years old. For most of that time Ms Verney had been employed and paid, in her role as the testator's care-giver, by the plaintiff. Due to an argument that developed, from 16 October 2006 until he died the testator employed Ms Verney directly. However, he had promised the plaintiff that on condition of him meeting the costs for the engagement of Ms Verney, subject to various pecuniary legacies that had been discussed between them, the balance of the estate would be left to the plaintiff. It is said that the bequest of $100,000 to Ms Verney was in breach of the agreement that had been reached. [6] I am satisfied that the allegations in the statement of claim have been substantiated by a lengthy affidavit sworn by the plaintiff on 30 April 2007. Since Ms Verney has not taken any steps I consider the appropriate course is now to enterjudgment for the plaintiff. The plaintiff is to have the relief sought in paragraphs A and C of the prayer for relief in the statement of claim dated 1 May 2007.