Anderson v Patterson - [2024] NZHC 1499

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2023-412-000021

[2024] NZHC 1499

UNDER Section 49, of the Administration Act 1969

IN THE MATTER OF

the Will of ELIZAETH BEVIN PATTERSON

BETWEEN

SANDRA MARIE ANDERSON

Plaintiff

AND

ELIZABETH JANET PATTERSON

Defendant

Hearing: 21 February 2024

Appearances:

G P Tyrrell for Plaintiff

A J Douglass and S Gaskell for Defendant

Judgment:

7 June 2024

JUDGMENT OF PRESTON J

This judgment was delivered by me on 7 June 2024 at 4.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

ANDERSON v PATTERSON [2024] NZHC 1499 [7 June 2024]

Introduction

[1] When Elizabeth (Betty) Bevin Patterson died she left her estate in entirety to one of her four children, the defendant Elizabeth Patterson (Liz).

[2] Another daughter, the plaintiff Sandra Anderson (Sandra) has filed a claim in the Family Court. Sandra received nothing under the will. She seeks further provision from the estate under the Family Protection Act 1955 (FPA).

[3] Sandra’s proceeding in this court, for interim injunctive relief, has been brought because of the sequence of events surrounding the filing of her FPA claim.

[4] Just before the Christmas court vacation, on 21 December 2022 Sandra’s then counsel emailed the executor of the estate advising he was going to file Sandra’s claim that day or the following. The proceedings were, in fact, filed that day.

[5] In the new year the executor emailed all parties noting she had not received Sandra’s proceedings and that she intended to distribute the assets unless she received proof of filing by 30 January 2023.

[6]What happened next is the subject of a central dispute on the facts.

[7] Sandra’s counsel responded to the executor by email. He confirmed the proceedings had been filed, attaching copies of the documents as filed. The email was sent to the executor’s email address as in the usual course of the correspondence between the parties to that point. However, the executor deposes she did not receive it. As a result and being satisfied the notice period for filing of any FPA claim had expired, on 8 February 2023 the executor transferred the property to Liz.

[8] Sandra now seeks interim injunctive relief including following orders, to protect against further disposition of the property pending determination of the FPA claim. In response, Liz applies for summary judgment dismissing the claim for interim relief, on grounds it cannot succeed.

Background

[9] Betty Patterson was predeceased by her husband, Lionel. She and Lionel had four children: Karen Anne Reynolds, the plaintiff Sandra Marie Anderson, a son Fraser George Patterson and the defendant, Elizabeth Janet Patterson.

[10] Ms Sharon Lont is a second cousin of Lionel and was his and Betty’s solicitor for some 25 years. Each appointed her as executor and trustee of their respective estates. Under Betty’s last will dated 26 February 2012, she left her residuary estate to Liz. The major asset in the estate is Betty’s former…

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 Anderson v Patterson

Details

AGLC: Anderson v Patterson [2024] NZHC 1499
Case: [2024] NZHC 1499
Decision Date: 7 June 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Sandra Marie Anderson brought a claim against Elizabeth Janet Patterson, her sister, seeking further provision from their mother's estate under the Family Protection Act 1955. Elizabeth had been left the entirety of the estate, including their mother's former home. Sandra, who was left nothing, sought interim injunctive relief to prevent Elizabeth from disposing of the property pending the determination of Sandra's claim in the Family Court. Elizabeth applied for summary judgment dismissing Sandra's claim for interim relief, arguing that Sandra could not succeed because she had not provided proper notice of her claim before the estate was distributed. The court found that while Sandra's initial notice was not valid, there was an arguable case that the executor was served or notified of the claim before the property was transferred to Elizabeth. The court held that there was no statutory bar to equitable relief and granted Sandra's application for an interim injunction and conditional following orders, pending the outcome of the Family Court proceedings. The court ordered that Elizabeth was not to dispose of the property and, if Sandra's claim succeeded, she was to transfer an interest in the property to Sandra or pay her a sum equivalent to her entitlement under the Family Protection Act. Costs were ordered to follow the event in favour of Sandra.

Orders