AB v RT - [2015] NZHC 3174

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CIV 2013-442-306 [2015] NZHC 3174

UNDER the Family Protection Act 1955

UNDER

the Administration Act 1969

BETWEEN

AB Plaintiff

AND

RT AND ST Defendants

Hearing: 7-8 July 2015

Counsel:

I Hunt and C Light for Plaintiff D E Holloway for Defendants G Downing for Beneficiaries

Judgment:

11 December 2015

JUDGMENT OF BROWN J

AB v RT AND ST [2015] NZHC 3174 [11 December 2015]

Table of Contents

Paragraph No.

Introduction [1] Claim, defence and issues [6] Relevant principles [13] The facts [30]
The plaintiff ’s perspective [31] A contrasting perspective [34] May to December 2008 [43] Conclusions on the evidence [61]

Submissions of counsel [65] The plaintiff ’s case [65] Submissions of beneficiaries served [70] Analysis of the plaintiff’s claim [75] Do the executors have personal liability for the award to the plaintiff? [99]
Protection from liability under s 47(4) [99]

A duty of even-handedness? [105]

Following orders [113] Orders [115]

Introduction

[1] CD and EF, the mother and father of the plaintiff (AB), accumulated significant assets over many years.1 They had two children: the plaintiff and a son who died on 17 May 2004. EF died on 21 May 2008, leaving his estate to CD.

[2] CD made her last will on 16 December 2008. She died on 7 October 2012 at Nelson. Probate was granted on 31 October 2012 to RT and ST, the executors named in the will as the administrators of CD’s estate. The value of the estate is approximately $2.4 million.

[3] CD’s will made provision for a number of substantial bequests. The residue of CD’s estate was left in equal shares to RT, and to the trustees of the inheritance trust of CD’s granddaughter YZ. YZ is the plaintiff’s daughter. RT and ST in combination received approximately $999,000, and YZ’s trust received approximately $864,000. However the plaintiff received only $25,000.

[4] Furthermore, the plaintiff was not advised of her bequest, or indeed of the fact of her mother’s death, until six months following the grant of probate. On
6 May 2013 the solicitors for CD’s estate, Glasgow Harley, wrote a letter to the plaintiff in the following terms:

We are acting for the estate of [CD]. We have received instructions from the executors and trustees of the estate that in accordance with [CD’s] very clear wishes, the estate was to be distributed six months after probate was granted, this period has now expired.

Under the terms of [CD’s] will you have been bequeathed the sum of
$25,000, as one of 17 beneficiaries including three charities being Child
Cancer, The Rescue Helicopter Trust and The NZ Foundation for the Blind.

A letter from your daughter [YZ] is also enclosed, which the trustees advise
now completes your Mother’s instructions to the trustees.

The trustees are now intending to finalise distribution of the estate, in conjunction with the estate’s accountant, following clearance of all tax related matters.

We would be grateful if you could sign and return the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AB v RT

Details

AGLC: AB v RT [2015] NZHC 3174
Case: [2015] NZHC 3174
Decision Date: 11 December 2015

CaseChat Overview and Summary

This case concerned a claim under the Family Protection Act 1955 (the Act) by a daughter against her mother’s estate. The plaintiff alleged that her mother had failed in her moral duty to make adequate provision from her estate for the plaintiff’s proper maintenance and support. The plaintiff was awarded a bequest of $25,000. The plaintiff further asserted that the executors had distributed nearly all of the estate before notifying the plaintiff of her mother’s death and that they had distributed a part of the estate prior to the date six months from the date of probate. Accordingly, the plaintiff also sought, in a second cause of action, following orders under s 49(1) of the Administration Act 1969; and in a third cause of action, an order that the executors are personally liable to pay her any amount awarded by the Court for her proper maintenance and support. The executors admitted in their statement of defence that on 22 April 2013, prior to the six month period from the date of grant of probate which ended on 30 April 2013, a part share in a motel property was distributed by transfer to RT and another beneficiary in their capacity as trustees of a beneficiary trust. The plaintiff’s claim was that this distribution amounted to a breach of the duty of even-handedness that the executors owed her as a potential claimant against the estate. The Court held that the executors were in breach of that duty. The Court held in the alternative that the plaintiff was entitled to following orders under s 49 of the Administration Act 1969 against RT, ST and the YZ inheritance trust.

Orders