RE ESTATE OF ANDREWS [2021] NZHC 3179

RE ESTATE OF ANDREWS [2021] NZHC 3179

The Court held that the will's provisions must be read as an accounting mechanism to equalise the three sons by bringing inter vivos advances (termed "loans" and including specified professional costs) into account when calculating residuary shares; read in context (notably clause 15) and supported by...

Source-derived case information.

Citation
[2021] NZHC 3179
Parties
Deceased Testatrix: Robyn Margaret Andrews; Applicant and Beneficiary: Evan William Andrews; Applicant and Beneficiary: Richard John Andrews; Applicant, Executor and Trustee: David Bruce Bell; Respondent and Beneficiary: Stephen Robert Andrews
Court
High Court
Jurisdiction
New Zealand
Judgment Date
26 November 2021
Procedural Posture
High Court Application for Directions Under Trusts Act 2019 S140; Will Interpretation and Potential Rectification / Judgment on Application for Directions (declared 29 November 2021)
Outcome
Direction issued: amounts described as loans/advances to Stephen and associated entities (including specified professional costs) are to be brought into account in calculating the Andrews-Runnymede Trust's share of the residuary estate notwithstanding Stephen's bankruptcy and discharge; costs reserved.
Legal Topics
Will Interpretation, Rectification of Wills, Effect of Bankruptcy Discharge on Testamentary Accounting, Directions Under Trusts Act S140, Provable Debts Under Insolvency Act
Wills and Succession Trusts Insolvency Estate Administration Will Interpretation Rectification of Wills Effect of Bankruptcy Discharge on Testamentary Accounting Directions Under Trusts Act S140 +1 more

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 5 Authorities cited 10 Party arguments 2 Amounts and remedies 9
Sign in to unlock

Parties

Robyn Margaret Andrews

Deceased Testatrix

Evan William Andrews

Applicant and Beneficiary

Richard John Andrews

Applicant and Beneficiary

David Bruce Bell

Applicant, Executor and Trustee

Stephen Robert Andrews

Respondent and Beneficiary

Procedural Posture

High Court Application for Directions Under Trusts Act 2019 S140; Will Interpretation and Potential Rectification / Judgment on Application for Directions (declared 29 November 2021)

Legal Issues

  1. 1 Whether loans/advances to Stephen and entities associated with him may be brought into account in calculating the residuary share despite his bankruptcy and discharge
  2. 2 Whether extrinsic evidence (s32 Wills Act 2007) may be used to ascertain testamentary intention regarding the loans
  3. 3 Whether the will should be rectified under s31 Wills Act 2007 if the testamentary intention is not reflected in the will's text

Ratio Decidendi

The Court held that the will's provisions must be read as an accounting mechanism to equalise the three sons by bringing inter vivos advances (termed "loans" and including specified professional costs) into account when calculating residuary shares; read in context (notably clause 15) and supported by contemporaneous extrinsic evidence of the testatrix's intentions, those advances are to be accounted for notwithstanding that related legal debts may have been extinguished on Stephen's discharge from bankruptcy, and therefore the bankruptcy/discharge had no effect on the will's operation in this respect.

Court Disposition

Direction issued: amounts described as loans/advances to Stephen and associated entities (including specified professional costs) are to be brought into account in calculating the Andrews-Runnymede Trust's share of the residuary estate notwithstanding Stephen's bankruptcy and discharge; costs reserved.

Orders

  • Loans expressed in the Will of Robyn Andrews dated 22 March 2017 to be due by Stephen and/or entities associated with him are correctly brought to account (together with costs incurred by Mrs Andrews in respect of loan defaults and management) in calculating the net amount due to him (i.e. to the Andrews-Runnymede...
  • Stephen's bankruptcy and later discharge from bankruptcy have no effect on the terms of the Will in respect of bringing the loans and specified costs into account