AP v Lucas
[2021] NZHC 1017
•7 May 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-1785
[2021] NZHC 1017
UNDER the Family Protection Act 1955 IN THE MATTER
of the Family Court’s judgment in FAM-2018-004-115
BETWEEN
AP
Appellant
AND
COLIN JAMES LUCAS
Respondent
Hearing: 10 December 2020 Counsel:
LT Meys and TJP Bowler for appellant PJ Stevenson for respondent
SA Grant and JM Goodwin for Ms L (interested party) YE Clarisse for residual beneficiaries
Judgment:
7 May 2021
JUDGMENT OF FITZGERALD J
This judgment was delivered by me on 7 May 2021 at 3.30pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Nielsons Lawyers, Auckland
Carter Atmore, Auckland Pitt & Moore, Nelson
To: S Grant, Auckland
AP v LUCAS [2021] NZHC 1017 [7 May 2021]
Introduction
[1] Ms P’s father (who I will also refer to in this judgment as the deceased, or the testator) died on 6 July 2017 after a number of years of ill-health. In August of last year, the value of his estate was in the vicinity of $3.2 million. It comprised an apartment in Newmarket (with a valuation of a little under $1 million), bank accounts and managed funds (worth approximately $2.1 million), various chattels, a relatively new Mercedes motor vehicle and a Rolex watch (worth around $51,000).
[2] The deceased’s last will and testament was executed on 30 June 2017, a matter of days before his death. There is no suggestion he lacked testamentary capacity in relation to his will. His will provided that the Newmarket apartment would pass to Ms L, his widow. The deceased and Ms L had met approximately two years before his death, and had married a few days before he passed away. Pursuant to an agreement under the Property (Relationships) Act 1976 (the PRA), Ms L was also paid the sum of $500,000 upon the deceased’s death.
[3] The deceased had three adult children from an earlier marriage. His will left to one of his children, Ms P, a number of personal chattels of sentimental value (such as Dutch antiques, paintings and family medals) with a value estimated to be around
$10,000. All remaining personal and household effects, including the Mercedes motor vehicle, were left to Ms L. The Rolex watch has passed to Ms P. Ms P’s two sisters received nothing from their late father but have taken no steps in these proceedings.
[4] The residue of the estate, totalling some $2.1 million, was left equally to Ms P’s two daughters (in other words, the deceased’s granddaughters) who were born in September 2002 and August 2005 respectively. They are presently aged 18 and 15 years old. I will refer to them as J and M respectively.
[5] By all accounts, the deceased had a strong personality, and had a difficult relationship with all three of his children, though in recent years the relationship between himself and Ms P had rekindled, particularly following the birth of her two children.
[6] Following her father’s death, Ms P was significantly aggrieved to learn that she had effectively been excluded from his will, other than to receive some chattels of relatively minor value. Her disappointment was no doubt exacerbated by the fact that Ms L received significantly more benefits under the will and the PRA agreement, and that her own children also received significantly more than her. This was also against the backdrop of an earlier will which the deceased had executed in December 2016, in which he gifted to Ms P the same Dutch antiques and other sentimental chattels, left the remaining personal and household effects (including the Mercedes motor vehicle) to Ms L, directed that the sum of $300,000 was to be held on trust by Ms P and applied at her sole discretion for the education of her two children, but left the whole of the residue of the estate to Ms P.
[7] It was in this context that Ms P commenced proceedings in the Family Court pursuant to s 4 of the Family Protection Act 1955 (the Act), seeking further and better provision from the deceased’s estate.
[8] In the Family Court, all parties agreed that there had been a breach of the deceased’s moral duty to make provision for Ms P. Two key issues accordingly arose before the Family Court:
(a)first, what further provision should be made in favour of Ms P; and
(b)second, from what source should that further provision be made.
[9] The Family Court Judge, Judge L J Ryan, concluded that further provision ought to be made in favour of Ms P, but in a way which interfered as little as possible with the deceased’s intentions, particularly in relation to his widow Ms L, and reflecting his clear desire to help his two granddaughters establish themselves in their early adulthood.1 The Judge accordingly left the bequests in the will to Ms L unchanged. He confirmed the bequest of the Dutch antiques and other similar chattels to Ms P, as well the deceased’s Rolex watch. In relation to the residue of the estate, Judge Ryan ordered that it be divided into thirds, with Ms P receiving one-third and
1 [P] v Lucas [2020] NZFC 7118 at [49], [51], and [60].
each of the two granddaughters to receive one-third upon attaining the age of 21 years. This effectively increased Ms P’s share of the estate from around $10,000 to $700,000.
[10] Ms P now appeals against the Family Court judgment. She says that additional provision should be made for her out of her late father’s estate. Mr Meys, Ms P’s counsel, presented Ms P’s primary argument as being that the Judge erred in effectively equating Ms P’s provision with that of her two children. He says that it is highly unusual and ultimately wrong as a matter of principle to allow for equality as between grandchildren of a deceased and their living parent. Ms P’s secondary argument is that the provision made for her is insufficient when compared with the significant provision made for Ms L, who had only known the deceased for the last two years of his life.
[11] Neither Ms L nor the deceased’s grandchildren cross-appeal against the orders made in the Family Court. Ms L appeared on the appeal as an interested party and broadly supported the judgment below. Ms Clarisse appeared as counsel for the deceased’s elder granddaughter (M) (who since delivery of the Family Court judgment has attained the age of 18 years), and as litigation guardian for the younger grandchild (J), now 15 years old. Ms Clarisse confirmed that the granddaughters’ position is that the Family Court’s determination should be left undisturbed.
[12] The respondent, Mr Lucas, is the executor of the deceased’s will. He abides the Court’s decision on the appeal.
[13]This judgment is structured as follows:
(a)First, I summarise the relevant factual background. I do so largely by reference to the facts as summarised in the Family Court judgment, which are not in issue.
(b)Second, I summarise the legal principles applying to the appeal.
(c)Third, I summarise each party’s submissions.
(d)Finally, I set out my discussion of the issues and the conclusions I have reached in relation to them.
Factual background
[14] As noted above, the underlying facts are not in dispute and were helpfully summarised in the Family Court judgment. I therefore gratefully adopt that summary:2
[10] The applicant was born on 19 April 1969. Her older sister [E] was born in 1967 and her younger sister [X] was born in September 1971. The deceased and the children’s mother [A] ended their relationship in 1979. The family lived in the Netherlands. They were all born there including the deceased. The deceased suffered the first of many heart attacks in 1981. He had commenced a new relationship in 1980 and subsequently married [G], who from all accounts was “the love of his life”. Unfortunately, [G] passed away in March 2015 as a result of cancer. She and the deceased had moved from the Netherlands to New Zealand in 1990 and they remained living in this country.
[11] The deceased and [A] were embroiled in an acrimonious battle over what appears to be matrimonial property and maintenance. Most unfortunately [P] was drawn into these proceedings and apparently had to give evidence. It is unclear to me which of her parents were responsible for involving her. Suffice it to say that [P’s] involvement at the hearing infuriated the deceased and for some time he appeared not to forgive her for whatever it was that she had done in his eyes. Notwithstanding that to be the case, it appears that [P] and [X] did visit their father in New Zealand in or about 1990 and then [P] visited again in 1992, 1993 and 1996.
[12] From 1996, there was little contact between father and daughter until 2002 when [P] told her father that she was pregnant with [M]. Any significant contact however did not really commence again until 2013 when [P] learned of [G’s] ill health. In December 2013 [P] and her children travelled to New Zealand and stayed for some 11 days. This was the first time the grandchildren had met their grandfather. A year later in December 2014 [P] travelled again to New Zealand to meet with her father and then in January 2015 she visited once more. This was not long before [G’s] death. There was regular contact by way of phone calls and emails between father and daughter from 2013.
[13] In June 2015 the deceased met [Ms L] at Auckland Hospital during one of his many admissions. They had met through a dating site. The deceased, a day or two after he had met [Ms L], had heart surgery. During his recovery [Ms L] would visit the deceased at his home in the retirement village where he lived. The deceased was wanting companionship given the recent death of [G] and it appears [Ms L] was providing not only that, but she also began caring for him and staying overnight with him. It appears a sexual relationship began within a couple of weeks of their meeting. The evidence discloses this was an important factor for the deceased.
2 [P] v Lucas [2020] NZFC 7118.
[14] In November 2015 the deceased brought the apartment in George Street, Newmarket, apparently because he needed to leave the retirement village. Shortly thereafter the deceased was again admitted into hospital due to the issues with his heart. He was discharged on 30 December and returned to the George Street apartment. [Ms L] was living in the apartment with the deceased except during some of the period when [P] and the children were visiting from Holland. According to [Ms L] early in 2015 the deceased asked her to cancel the lease on her unit and indicated that he wanted her to move in with him permanently.
[15] On 18 April 2016, as part of the events around [Ms L] terminating her lease, the deceased and she signed a relationship property agreement. That agreement provided for a payment to be made upon the defendant’s death, of
$250,000 to [Ms L] and it also recorded that the deceased had made provision in his will for a further payment of $250,000 to [Ms L]. It is pertinent to note in the preamble to that agreement, it was recorded.
“A.The parties entered into a relationship in the nature of a de facto relationship in June 2015.”
[16] During [P’s] visit to New Zealand in January 2017 the deceased gave her a Rolex watch that used to belong to [G], which it was agreed was worth at that time, some $32,000. Shortly after the visit the relationship property agreement between the deceased and [Ms L] was varied by way of a deed. The variation replaced the operative clause in the earlier agreement. The new provision stated:
“[Ms L] and [the deceased] agree that [Ms L] is entitled to a payment from [the deceased] of the sum of $500,000, which sum falls due on the date of [the deceased’s] death to compensate [Ms L’s] loss of cancelling Housing New Zealand’s tenancy. The payment of the sum of $500,000 is separate and apart from any gift [the deceased] may … (in his sole unfettered and absolute discretion) elect to make in [Ms L’s] favour in his will. Such promise of payment is payable regardless of whether [Ms L] and [the deceased] are in a de facto relationship at the time of [the deceased’s] death.”
[17] Although [G] died in March 2015, pursuant to her will her estate was held in trust with the deceased receiving income from it. [G’s] will provided that upon the deceased’s death, [P] would receive from her estate the sum of
$300,000. For reasons which are unclear the amount received by [P] only amounted to $218,000.
[15] The following additional matters are relevant to note at this stage. First, it is not in dispute that the deceased had been relatively ill for a number of years before his death. As is evident from the above extracts from the Family Court judgment, the issues were heart-related. It is also not in dispute that he was very seriously ill in the two years prior to his death, and effectively needed 24/7 care. Fairly early on in their relationship, Ms L moved in with the deceased and provided that 24/7 care and support
to him. In addition to the health-related care she provided, she also provided the companionship which the deceased desired, as well as a physical relationship.
[16] Further, despite the difficult relationship between Ms P and her father (stemming from what appears to have been the deceased’s view that Ms P “sided” with her mother, the deceased’s ex-wife, in acrimonious divorce proceedings when Ms P was a teenager), the relationship between father and daughter had rekindled to an extent over the approximately 10 years prior to his death. This was particularly so following the birth of Ms P’s two children, for whom the deceased obviously had great affection. As the Judge noted, Ms P had visited New Zealand several times prior to the deceased’s death, and on two of those occasions had brought her young children to meet their grandfather.
[17] What is clear, however, is that the relationship between father and daughter took a dramatic turn for the worse, when on the journey to the airport following her last visit to New Zealand prior to her father’s death, Ms P recounted to Ms L the divorce proceedings between the deceased and his ex-wife, and that Ms P had got dragged into those proceedings between her parents. Ms L evidently recounted what Ms P had told her to the deceased on her return home that afternoon, which put the deceased into a rage. Ms P gave evidence of her father ringing her while she was still in the departure lounge at the airport, and raging against her in the phone call about what she had told Ms L. It was subsequent to this that the deceased changed his will to reflect those provisions summarised at [2] to [4] above.
The Family Court decision3
[18] Having summarised the factual background as set out at [14] to [17] above, together with the various wills the deceased had executed over the period 2010 to June 2017, the Judge addressed the legal principles applicable in a case of this kind. I have summarised those principles later in this judgment (see [36] to [41] below), and no issue is taken on appeal with the Judge’s statement of the law.
3 [P] v Lucas [2020] NZFC 7118.
[19] The Judge then summarised the value of the estate, observing that while it was not large, it was of sufficient size to have enabled the deceased to meet his moral duty to his daughter whilst still satisfying his desire to recognise and provide for his widow and his grandchildren. The Judge noted that the value of the apartment and other bequests to Ms L totalled some $1 million, representing a little over 30 percent of the estate.
[20] The Judge then examined in some detail the relationship between the deceased and Ms P, noting that all counsel acknowledged that that relationship lay at the heart of the dispute. The Judge noted that the Court of Appeal in Flathaug v Weaver4 had confirmed that the moral duty owed by a parent to a child to provide maintenance and support will be reduced if that relationship was dysfunctional, intermittent or reduced in some other way. The Judge also noted that the strength of the moral duty will impact on the quantum of any award for a breach of that duty.5 The Judge traversed the evidence relating to the deceased and Ms P’s relationship, which for many years had been a difficult one. The Judge found that the deceased’s move from the Netherlands to New Zealand was a major factor in the weakening of his relationship not only with Ms P, but also with his two other daughters. The Judge found that the move was a selfish one and did nothing to assist Ms P or her sisters who were at that time still relatively young women (although living independently). The Judge did acknowledge that from 1990, the deceased gave gifts to Ms P and that he kept in touch with her by telephone and email. He also paid for Ms P’s holiday with himself and G in Italy, and paid for Ms P to visit New Zealand in 1990, 1992, 1993 and 1996. The Judge noted that for about six years, there was little contact between the deceased and Ms P until her first daughter, M, was born in 2002 (accepting Ms P’s evidence that it was she who had initiated contact with her father by telling him she was pregnant).
[21] The Judge noted that it was clear from the evidence, and not really disputed by any of the witnesses, that the deceased was a person who had very strong views about most things. He referred to evidence of a friend of the deceased, who he found to be a compelling witness, that over time the deceased had gradually “burnt off all his friends”. The Judge also accepted evidence from this witness that the deceased’s
4 Flathaug v Weaver [2003] NZFLR 730 (CA).
5 Referring to Parsons v New Zealand Guardian Trust Company Ltd [2008] NZFLR 933 (FC).
second wife, G, had been the “love of his life” and that her death impacted hugely on his emotional wellbeing. The Judge noted that while Ms P’s relationship with her father was fraught, it was clear she had a close and caring relationship with G which was presumably the reasons G left $300,000 to Ms P from her own estate.
[22] Having traversed the history of the relationship between father and daughter, the Judge concluded that the responsibility for the “difficult, sometimes dysfunctional relationship” between the two lay primarily with the deceased. The Judge observed:6
Ms Grant [counsel for Ms L] submits that the evidence falls short of establishing that the deceased was “vindictive or embittered” in his dealings with [Ms P]. With respect I do not agree. The deceased displayed behaviour that was intolerant, impulsive, controlling and revengeful in respect, not only of [Ms P], but as I have said earlier in respect of his friends and acquaintances. It was that personality coupled with the deliberate decision to leave his family in the Netherlands and resettle in New Zealand, that led to the difficult and strained relationship between the applicant and the deceased.
In making this finding, I am not dismissing the submission that [Ms P] did not contribute to the causes of the dysfunctional relationship, nor am I suggesting that she did as much as she could to effect a reconciliation. I accept the submission that she could have done more.
[23] On appeal, it was not in dispute that the Judge’s findings on the evidence led him to conclude that there had been a relatively serious breach of the deceased’s moral duty to Ms P.
[24] The Judge then turned to Ms P’s financial circumstances. Again there was no dispute as to the Judge’s factual findings in this regard. He noted that Ms P was at that time of his judgment 51 years of age and living in rental accommodation (which she had done for some 12 years). She is a bank employee and the Judge noted that her salary is sufficient to cover her living expenses. Ms P supports one of her two children who as noted is now 15 (M having lived with her father since 2016). The Judge observed that Ms P has insignificant savings or property, notwithstanding that she received a little over $200,000 from G’s estate. He rejected the submission that she had been “a poor financial manager” and effectively “frittered away” the money. The Judge observed that:7
6 At [40] – [41].
7 At [43].
Given the sum of money received from [G’s] estate was never going to be sufficient to enable her to purchase her own home, it is somewhat harsh in my respectful view, to criticise her for trying to improve her quality of life a little.
[25] The Judge was ultimately satisfied that Ms P’s financial circumstances were such that she appeared to be living within her means but to no extent extravagantly. He stated that the fact that at age of 51, apart from the bequest from G, she has not been able to accumulate assets or savings, indicated that her living is at or around subsistence level.
[26] Turning to whether there had been a breach by the deceased of his moral duty, the Judge found that due to his selfish actions in leaving his family in the Netherlands, coupled with the elements of his personality already described, the deceased was “the antithesis of a wise and just testator”.8 The Judge stated:9
He was reactive, judgmental, impulsive and unempathetic. He appeared to take not responsibility for the state of his relationship with [Ms P] and for his other two children for that matter.
[27] The Judge fairly readily concluded that by effectively excluding Ms P from his will, the deceased breached his moral duty to her.
[28] The Judge then turned to the quantum of the award, being that necessary to remedy the breach of moral duty. The Judge emphasised that only provision sufficient to remedy the breach was required, and the Court did not have jurisdiction to rewrite a will simply because the result might be considered unfair.10 The Judge noted that the claim in this case was more than simply a claim for recognition, but that he must also take into account the lack of financial and emotional support to Ms P for many years after the deceased separated from Ms P’s mother. The Judge considered the estate large enough to balance the needs of Ms L, as the deceased’s widow, and the beneficiaries under the will, together with an award for Ms P. The Judge noted:11
The assessment of quantum can be informed by the provision made by the deceased for the applicant in his will of 15 December 2016. She was to receive the residue of the estate. Less than three months later, after the confrontation between the deceased and the applicant on the day she left New
8 At [47].
9 At [47].
10 Referring to Williams v Aucutt [2000] 2 NZLR 479 (CA) at [37] and [68].
11 At [54].
Zealand, the deceased effectively removed her as a beneficiary except for the Dutch belongings. There was nothing wise or just about that action.
[29]The Judge then said the following:12
I was invited to make an award sufficient to enable the applicant to purchase a home of a reasonable standard in Holland. I accepted this meant around
$1 million in New Zealand dollars. Unlike the expectations of New Zealanders there is no presumption in Europe that one should own their own home. My sense of the applicant was that she had not such expectation.
[30] The Judge stated that it was not for Ms L to justify what she inherited pursuant to the deceased’s will. The Judge also observed that the payment to Ms L of $500,000 by virtue of the relationship property agreement also did not “become a significant factor in determining the award”. The Judge rejected any suggestion that Ms L was endeavouring to influence the deceased, both in relation to the relationship property agreement and his testamentary disposition. He stated:13
She may have made the most of her opportunities as they presented themselves but she cannot be criticised for that. There is no doubt she provided companionship, care and attention to the deceased from the moment she moved in with him. Her tasks became onerous and difficult the more unwell and incapacitated he became. His words at their wedding demonstrated the feelings he had for her and he was entitled to provide for her in the manner he did.
[31] The Judge accordingly accepted Ms Grant’s submission that the Judge should take into account the deceased’s clear intention to recognise the importance of Ms L to him in the last two years of his life, and his intention to give her the apartment in Newmarket to meet her accommodation needs.
[32] The Judge did consider converting Ms L’s interest in the Newmarket apartment to a life interest, but concluded that would be a step too far, not reflecting the deceased’s intentions.
[33] The Judge accordingly excluded the Newmarket apartment and other bequests to Ms L from the incidence of the award he proposed to make in Ms P’s favour. Taking into account his assessment of the relationship between Ms P and her father, the Judge
12 At [56].
13 At [58].
concluded that the residue of the estate ought to be divided equally between the grandchildren and Ms P. The Judge noted that the effect of that order was to provide to Ms P with an award of approximately 23 percent of the value of the estate. The Judge stated:14
I acknowledge this is near the top of the scale of awards in such cases, but for the reasons I have articulated, it is a justifiable award given the serious breach of moral duty I have found occurred.
[34]The Judge concluded as follows:
[62] This of course means the two grandchildren’s awards are reduced to the same size as that of their mother. In the normal course of events, however, they can expect to inherit from their mother whatever may be left of her award in the future. There is no evidence that would suggest anything other than a loving mother/daughter relationship between the applicant and her two children. In fact I was impressed with the applicant’s evidence as to her commitment to them both, demonstrated by her approach to care arrangements. I am confident that the applicant will provide for her two children in any testamentary disposition that she makes or has already made.
[63] Looking at the overall picture of the result of this award I am satisfied that orders in these terms makes as little interference with the testator’s intention as possible, especially in relation to his widow and still reflects ultimately his desire to help his two grandchildren establish themselves in their early adulthood.
Legal principles applicable to appeal
[35] In Talbot v Talbot the Court of Appeal confirmed the proper approach to appeals of the nature in this case:15
Whether or not there has been a breach of moral duty set out in s 4 of the Act16 is a threshold issue, turning on matters of law, fact and degree. Appeals involving this threshold issue fall to be determined by reference to the approach set out in Austin Nichols. If there is a breach of moral duty found, then what remedy should be granted by the Court below is an issue involving the exercise of a discretion, and an appellate court will only intervene if there has been an error of law or principle, if the Judge below took into account an irrelevant consideration or failed to take into account a relevant consideration, or if the decision below is plainly wrong.
14 At [61].
15 Talbot v Talbot [2017] NZCA 507, [2018] NZFLR 128 at [37].
16 That is, the Family Protection Act 1955.
[36] Randerson J in Vincent v Lewis succinctly summarised the principles drawn from earlier leading authorities on claims for further provision:17
(a)The test is whether, objectively considered, there has been a breach of moral duty by [the testatrix] judged by the standards of a wise and just testatrix.
(b)Moral duty is a composite expression which is not restricted to mere financial need but includes moral and ethical considerations.
(c)Whether there has been such a breach is to be assessed in all the circumstances of the case including changing social attitudes.
(d)The size of the estate and any other moral claims on the testator’s bounty are relevant considerations.
(e)It is not sufficient merely to show unfairness. It must be shown in a broad sense that the applicant has need of maintenance and support.
(f)Mere disparity in the treatment of beneficiaries is not sufficient to establish a claim.
(g)If a breach of moral duty is established, it is not for the Court to be generous with the testator’s property beyond ordering such provision as is sufficient to repair the breach.
(h)The Court’s power does not extend to rewriting a will because of a perception it is unfair.
(i)Although the relationship of parent and child is important and carries with it a moral obligation reflected in the Family Protection Act, it is nevertheless an obligation largely defined by the relationship which actually exists between parent and child during their joint lives.
[37] His Honour reiterated these principles in the Court of Appeal’s subsequent decision in Fisher v Kirby:18
[119] The more recent decisions of this Court have re-emphasised what has always been understood: that mere unfairness is not sufficient to warrant disturbing a testamentary disposition and that, where a breach of moral duty is established, the award should be no more than is necessary to repair the breach by making adequate provision for the applicant’s proper maintenance and support.
[120] The decisions of this Court from and including Little v Angus are properly viewed as a timely reminder that awards should not be unduly generous. But, in our view, neither should they be unduly niggardly, particularly where the estate is large and it is not necessary to endeavour to satisfy a number of deserving recipients from an inadequate estate. A broad
17 Vincent v Lewis (2006) 25 FRNZ 714 (HC) at [81].
18 Fisher v Kirby [2012] NZCA 310, [2013] NZFLR 463.
judicial discretion is to be exercised in the particular circumstances of each case having regard to the factors identified in the authorities.
[38] It is also clear that claims for provision or further provision from an estate are often made (and determined) by reference to a percentage value of the estate. As Katz J observed in Ormsby v van Selm:19
In a number of other cases, awards to children on a family recognition basis alone, as distinct from economic need, have tended to be in the range of 10 per cent to 20 per cent of an estate, depending on the particular factors involved. Where the estate is small, and there are many competing moral claims, then obviously an award is likely to be at the lower end. If an estate is large, there are few competing moral claims, and the breach of moral duty is particularly egregious, larger awards are often made.
[39] Also relevant to the present case, leading Court of Appeal authorities are clear that it is not for a beneficiary to have to justify the share which has been left to them under a will.20 Thus where the provision awarded to a claimant is sufficient to repair any breach of moral duty, the testator’s wishes should prevail.
[40] Aside from these principles of general application, Mr Meys also referred me to a number of authorities dealing with competing claims to an estate between the grandchildren of the deceased and the grandchildren’s living parent(s). I discuss this type of case in more detail later in this judgment,21 but for present purposes, it is suffice to note that the general thrust of these authorities is that it is often difficult for a grandchild to establish a claim where the grandchild’s parent is a living child of the deceased.22 Whata J summarised the overall approach in Wightman v Public Trust:23
Nevertheless the relationship between parent and child assumed primacy in 1965, as it does today. Furthermore, the fact that the parent was alive at the testator’s passing was (and is) a major factor in determining whether the testator was obliged to make provision for the grandchildren. Gresson P and Turner J in re McGregor rejected the claims of the grandchildren in that case effectively on the basis that there was no duty to the grandchildren because at the time of the testator’s death their parents still lived and they were not in financial need. But even then, neither Judge ruled out the possibility of a
19 Ormsby v van Selm [2015] NZHC 2822 at [45], upheld on appeal in Ormsby v van Selm [2016] NZCA 323.
20 Williams v Aucutt [2000] 2 NZLR 479 (CA) at [68]; Auckland City Mission v Brown [2002] 2 NZLR 650 (CA) at [39].
21 At [72] to [78].
22 As observed by Fisher J in Fraser v O’Grady HC Auckland M262/96, 20 May 1997 at 4; see also
Knight v Hunt [2019] NZFC 4406; and Chalk v Hoare [2009] NZFLR 736 (HC) at [25].
23 Wightman v Public Trust [2014] NZHC 3124, [2015] NZFLR 335 at [60].
meritorious claim by grandchildren whose parents were still alive at the time of the testator’s death. Gresson P adopted McCarthy J’s formulation in the court below that the duty to make provision might arise in “special circumstances” and Turner J posited that the duty might arise where the future needs of the grandchild were clearly foreseeable.
[41] Finally, Mr Meys also referred to the need for a Judge to give adequate reasons for the conclusions they have reached, with reference to the Court of Appeal’s statement in R v Awatere that:24
… Judges and Justices should always do their conscientious best to provide with their decisions reasons which can sensibly be regarded as adequate to the occasion. Indeed failure to follow that normal judicial practice might well jeopardise the decision on appeal.
The parties’ submissions
Submissions for Ms P
[42]Ms P advances four key grounds of appeal.
[43] The first, said to be the primary ground, is that the Judge erred in only considering the scale and apportionment of awards in more “normal” or “common” claims for provision under the Act, such as those involving competing claims between adult siblings or between a step-parent and adult children, and failed to consider cases where the apportionment is between grandchildren and their own parent (who is left out of the will).
[44] Mr Meys submits that the Judge failed to consider or refer to the case law summarised at [40] above, reflecting the difficulty a grandchild may have in advancing a claim while their own parent (the child of the deceased) is alive. Mr Meys states that in his submissions before the Family Court, he had focused on authorities such as Fraser v O’Grady25 and H v J,26 but that the Judge did not address or engage with these submissions.
24 R v Awatere [1982] 1 NZLR 644 (CA) at 649.
25 Fraser v O’Grady HC Auckland M262/96, 20 May 1997.
26 H v J FC Nelson FAM-2007-042-200, 8 June 2007.
[45]Mr Meys, in his written submissions, accordingly submits that:
It was an error for the Judge to not consider how apportioning two-thirds of the residue to [Ms P’s] minor children would exacerbate, rather than remedy, the damage caused by the deceased’s proved breach of moral duty in his will. The Judge ought to have awarded more of the residue to [Ms P] than to each of her children individually.
[46] Ms P’s second ground of appeal is that the Judge erred in believing that his judgment awarded Ms P approximately 23 percent of the estate. Given an appreciation in the value of the Newmarket apartment since the Family Court judgment, the award to Ms P now equates to only about 19 percent of the estate. Mr Meys also notes the costs claimed by Ms P in the Family Court of $97,000 (though as at the date of the hearing before me, the Family Court Judge had not made any orders as to costs). Mr Meys submits that this further erodes the benefit to Ms P from the award. Ms P says that the award therefore needs to be revisited to ensure the Judge’s stated intention of awarding her 23 percent of the estate is maintained.
[47] Under this ground of appeal, Ms P also says that the Judge erred in accepting that an amount of approximately NZD 1 million would have been required for her to purchase a home of a reasonable standard in the Netherlands, but not awarding her an equivalent sum.
[48] In this context, Mr Meys submits there was no evidence upon which the Family Court Judge could reasonably have reached the view that his “sense of the applicant was that she had no such expectation” to own her own home. Mr Meys refers to Ms P’s affidavit in the Family Court in which she had set out a mortgage calculation and expressly stated that on her salary at her age she would never be able to afford a home. Mr Meys submits that the award to Ms P ought therefore to be increased to enable her to receive a sum sufficient to purchase a reasonable home in the Netherlands.
[49] Ms P’s third ground of appeal is that the Judge placed insufficient weight on the deceased’s previous will and the relation property contracting out payment to Ms L. Mr Meys notes that Ms P’s will changed dramatically in the six months prior to his death. Mr Meys refers to the weight attached to an earlier will in Harrison v
Harrison,27 submitting that the grandchildren in that case had a greater moral claim on the estate than the grandchildren in this case (whom the deceased had only met twice prior to his death). Mr Meys further submits that there can be no question that up until six months before the deceased’s death, the grandchildren could not have argued they were entitled to more than $300,000 (being the amount in the December 2016 will to be held by their mother on trust for their future education).
[50]Mr Meys further submits that the Judge erred by placing little weight on the
$500,000 payment to Ms L, and apparently no weight on the irrational fight between the deceased and Ms P upon the latter’s departure from New Zealand, which led to the dramatic change between the deceased’s last two wills.
[51] Under Ms P’s fourth ground of appeal, she says that the Judge erred in failing to order that the incidence of the award should also include Ms L’s share of the estate. Ms P submits that the Judge erred by speculating that a life interest for Ms L in the Newmarket apartment would not have met the deceased’s presumed intention to ensure comfortable accommodation for his widow. Mr Meys points to observations of the Court in TB v JB to the effect that breaches of moral duty can be addressed by awarding a life interest only in the real property in issue, rather than a freehold interest.28 Mr Meys submits that the Judge did not refer to or appear to take into account the relatively short duration of the deceased and Ms L’s marriage when considering whether a life interest would be appropriate. Mr Meys also submits that the Judge failed to consider or refer to Ms L’s own view that she would have been happy to receive only the $500,000 agreed relationship property sum. Mr Meys also notes that a reason often cited for rejecting a life interest, namely requiring an ongoing relationship between (for example) a step-parent occupant and owner children, does not arise in this case, given the executor of the estate is a professional and thus the arrangement would not result in any communication between Ms L and Ms P.
[52] Finally, Mr Meys submits that the Family Court Judge did not consider s 7 of the Act, which provides that unless the Court otherwise determines, the incidence of any payment ordered should fall rateably upon the whole estate. Mr Meys submits
27 Harrison v Harrison (2007) 26 FRNZ 532 (HC).
28 TB v JB [2014] NZHC 1478, [2015] NZFLR 9.
that the Family Court judgment does not expressly exclude Ms L’s share of the estate from the incidence of the award, rather it is left to implication and without express or good reasons given for displacing the s 7 presumption. Mr Meys submits that during closing submissions at trial, the Judge discussed his thoughts with counsel and stated that he was unsure how Ms L would be able to make any contribution that she were ordered to pay, should she retain the Newmarket apartment and instead make a contributing payment to the award to Ms P (on a proportionate basis). Mr Meys says that there was evidence before the Judge as to Ms L’s financial position, which was contrary to any suggestion that she would be unable to contribute to such a payment.
Submissions for Ms L
[53] As noted, Ms L supports the Family Court judgment. Ms Grant submits that the award to Ms P was generous, given the limited and difficult relationship between her and her father over many years, the gifts Ms P received from the deceased during his lifetime, together with legacies left to her from both her mother and stepmother, as well as her relatively comfortable financial position.
[54] Ms Grant submits that the authorities referred to by Mr Meys (concerning claims between grandchildren and parents) are irrelevant, given it is not for Ms L or the grandchildren to justify the bequests made to them as beneficiaries of the estate. Once that distinction is properly understood, Ms Grant submits there is no basis to interfere with the award. She says that the Family Court judgment appropriately respects the deceased’s wishes, does the least possible damage to the express terms of his will, whilst making generous provision for Ms P in light of the admitted breach of moral duty. She distinguishes this case from those such as Cartwright v Joseph,29 being a case of actual child neglect by the deceased, and also cases where the claimant has clear and significant financial need.
[55] In relation to the argument that the award should have been sufficient to enable Ms P to purchase a house, Ms Grant says this is a “recast” of how Ms P’s claim was framed in the Family Court. Ms Grant points to evidence before the Family Court which she says is contrary to the suggestion Ms P definitely wished to purchase her
29 Cartwright v Joseph [2018] NZHC 2383.
own home, and notes that Ms P had been renting for 12 years in any event. Ms Grant refers to the Court of Appeal’s decision in Henry v Henry,30 in which it stated that it would be wrong to suggest that an earlier decision of that Court (Auckland City Mission v Brown)31 was authority for the proposition that the provision of sufficient money to a child of the deceased to purchase a home and provide a contingency fund is a benchmark or default standard. Ms Grant also took me to evidence which she says demonstrates that the award in this case would be sufficient to purchase a reasonable home in the Netherlands in any event.
[56] On the third ground of appeal, Ms Grant notes that Judge Ryan expressly stated that the assessment of quantum of the award could be informed by the provision the deceased made for Ms P in his December 2016 will. Ms Grant submits that the Judge did not err in not giving greater weight to the penultimate will, as there was no challenge to the validity of the final will and therefore the Judge correctly confined himself to intervening as little as possible in its provisions. Ms Grant further submits that as the estate was large enough to do justice between the parties, the Judge was not required to reduce Ms L’s share of the estate. Ms Grant further submits that as the
$500,000 payment to Ms L did not form part of the estate, it was proper that it was not given significant weight.
[57] Finally, Ms Grant submits that converting Ms L’s interest in the apartment to a life interest would be a significant rewrite of the will which was not justified on the facts of this case. Again, given the size of the estate and that an award to Ms P could be accommodated in other ways, Ms Grant says there was no error in excluding the bequests to Ms L from the incidence of the award.
Submissions for the grandchildren
[58] Ms Clarisse, counsel for M and litigation guardian for J, endorsed Ms Grant’s submission that neither of the grandchildren should be required to provide an explanation to the Court of what amount is reasonable for them to receive under the will, given their grandfather intended to make them both the residual beneficiaries of
30 Henry v Henry [2007] NZCA 42 at [58].
31 Auckland City Mission v Brown [2002] 2 NZLR 650 (CA).
his estate. On this basis, Ms Clarisse submits that after considering Ms P’s claim, the award granted to her should be no more than is necessary to repair the breach of moral duty. She submits that the Judge’s award was more than sufficient to do so.
[59] In this way, Ms Clarisse emphasises that the Court on appeal is not being asked to apportion the estate between minor grandchildren and their own living parent, but rather is asked to assess whether the provision made by the Family Court to repair the moral breach of duty to Ms P is sufficient for her proper maintenance and support. Ms Clarisse submits that for this reason, cases such as H v J and Fraser v O’Grady are readily distinguishable.
[60] Ms Clarisse makes similar submissions to Ms Grant in relation to Ms P’s second ground of appeal, emphasising that the provision of sufficient money to purchase a home is not a benchmark or default standard in claims of this kind. In considering the evidence and concluding that Ms P had no expectation of owning her own home, Ms Clarisse submits that the Judge cannot have been said to have applied an incorrect legal principle, or taken into account irrelevant considerations or failed to take into account relevant considerations (being the test on an appeal from an exercise of discretion). Ms Clarisse also submits that Harrison v Harrison,32 relied on by Ms P, is distinguishable, given the issue determined by the Court in that case was whether the testator lacked testamentary capacity, rather than a claim for provision under the Act.
[61] Ms Clarisse confirmed that she did not have instructions on behalf of the granddaughters to make submissions on Ms P’s remaining grounds of appeal.
Analysis
Introduction and general observations
[62] As noted earlier in this judgment, all counsel were agreed that the deceased had breached his moral duty to make provision for Ms P. Accordingly, the threshold issue to be determined in accordance with the statement of principle in Talbot v Talbot
32 Harrison v Harrison (2007) 26 FRNZ 532 (HC).
was met.33 The remaining enquiry before the Family Court was therefore what remedy should be granted. This involved the Judge exercising his discretion. I remind myself of the limitations on an appeal against the exercise of a discretion (see [35] above).
[63] I also remind myself that, as beneficiaries under the will, it is not for the grandchildren or Ms L to justify the bequests the deceased made to them. Accordingly, so long as the award made by the Judge was sufficient to remedy the deceased’s breach of moral duty to Ms P, the deceased’s wishes ought not to be disturbed.
[64] For the reasons set out in the balance of this judgment, I am not persuaded that the Judge erred in making the award he did in favour of Ms P. In my view, the award fell well within the range available to the Judge on the correct application of the legal principles to the evidence before him. The increase from receiving chattels valued at around $10,000 to an award of approximately $700,000 involves a significant change to the deceased’s will and, if anything, was in my view somewhat generous.
[65] Before turning to the four specific grounds of appeal, it is helpful first to address certain aspects of Ms P’s submissions, which in my view are ultimately a complaint that the outcome of the Family Court judgment is unfair.
[66] Mr Meys urged the Court to put itself “in the shoes” of the person who has suffered the moral breach when considering what is necessary to remedy the damage done. Mr Meys said that Ms P views the Judge’s decision as endorsing her father’s views about her parenting abilities.34 Mr Meys also submitted that if Ms P is ultimately awarded less that Ms L, she would be “shocked”, given it signals to Ms P that her whole life as a daughter to the deceased is worth less than Ms L’s 25 months with him.
[67] But this approach looks at the issue through the wrong lens. As the authorities make clear, general notions of “fairness” do not come into the exercise of the
33 Talbot v Talbot [2017] NZCA 507, [2018] NZFLR 128 at [37].
34 The submission being that “[Ms P] cannot understand why her father’s spiteful change from leaving almost everything to [her], to instead leaving approximately two thirds of it to her children, is being respected by the Court.”
discretion on claims of this type, even if the Court does not agree with what the testator has done. As Blanchard J stated in Williams v Aucutt:35
It is not for the Court to be generous with the testator’s property beyond ordering such provision as is sufficient to repair any breach of moral duty. Beyond that point the testator’s wishes should prevail even if the individual Judge might, sitting in the testator’s armchair, have seen the matter differently. As I have said, the Court’s power does not extend to rewriting a will because of a perception that it is unfair. Testators remain at liberty to do what they like with their assets and to treat their children differently or to benefit others once they have made such provisions as are necessary to discharge their moral duty to those entitled to bring claims under the Family Protection Act.
[68] This was reiterated by the Court of Appeal in Henry v Henry, in which O’Regan J (delivering the judgment of the Court) stated:36
Broader questions of desirability of greater awards or the Judge’s views of fairness should not come into play.
[69] The Judge’s award in this case does not reflect on Ms P’s parenting skills (indeed, the Judge expressly complimented Ms P in this respect),37 or make any assessment of or judgment about the comparative “importance” to the deceased of Ms P and Ms L respectively. Rather, the award is what the Judge considered to be the least “interference” with the deceased’s intentions as possible, but what was sufficient to remedy the breach of moral duty to Ms P.
[70] Against this backdrop, I turn to the four grounds of appeal advanced by Ms P. As noted, Mr Meys confirmed that the first ground of appeal is the primary ground.
First ground of appeal
[71] The focus of this aspect of the appeal is not the quantum of the award per se. Rather, the core complaint is how the award to Ms P measures as against the resulting award to each of her children. Ms P’s case is that the Judge erred in awarding one third of the residue to Ms P and thereby equating her share with that of each of her children.
35 Williams v Aucutt [2000] 2 NZLR 479 (CA) at [70].
36 Henry v Henry [2007] NZCA 42 at [58].
37 At [62].
[72] I accept Mr Meys’ submission that equal division of an estate is a more common approach when determining competing claims by adult siblings, or between adult siblings on the one hand and a step-parent on the other. And as noted at [40] above, the authorities suggest it will often be difficult for grandchildren to advance a successful claim on an estate in the context of a competing claim by their living parent. Mr Meys relies in particular on observations to this effect by Fisher J in Fraser v O’Grady.38
[73] But I do not consider those authorities, including Fraser v O’Grady, to be of direct relevance to this case. In Fraser v O’Grady, the grandchildren of the deceased made a claim for provision from their grandmother’s estate, the sole beneficiary of which was the deceased’s brother. Fisher J referred to earlier authorities which confirmed that it is often difficult for a grandchild to establish a claim where the grandchild’s parent is a living child of the deceased.39 While in Fraser v O’Grady the claimants’ parent (that is, the deceased’s child) had died some years earlier, Fisher J noted that neither grandchild had made any contribution to their grandmother’s estate or provided significant assistance to her during her lifetime. Fisher J also took into account that each of the grandchildren had been and would be well provided for from sources other than the deceased’s estate. The underlying relationship of grandparent/grandchild was therefore the primary basis upon which the claim was made. In the event, Fisher J found that while there was a moral duty on the part of the deceased to her grandchildren, it was a weak one. The Judge concluded that a modest award only was required to remedy that breach, and made an award of $20,000 in favour of each grandchild.
[74] The present case is materially different to Fraser v Grady (and other similar authorities). Most importantly, the deceased’s grandchildren do not make a claim on their grandfather’s estate. Rather, the deceased expressly made (significant) provision for each of them in his will. I reiterate that it is not incumbent upon a beneficiary of a will to justify the bequest made in his or her favour. Instead, the central question in this case remains what is required to remedy the deceased’s breach of moral duty to Ms P, while respecting the deceased’s wishes as much as is possible. I therefore do
38 Fraser v O’Grady HC Auckland M262/96, 20 May 1997 at 4.
39 At 4.
not consider the Judge erred in not adopting the approach often taken when determining a grandchild’s claim to an estate.
[75] Mr Meys also placed significant reliance on H v J, and submits that a similar approach would have been appropriate in this case, yet the Judge did not refer to that decision in his judgment.40
[76] I accept Mr Meys’ submission that, in a broad sense at least, the facts in H v J are closer to those arising in this case. In H v J, the deceased had made express provision in her will for her grandchildren. In fact, she had left the entirety of her estate (valued at approximately $90,000) to her three grandchildren in equal shares, and made no provision for her daughter (the claimant). At the time of the deceased’s death, she and the claimant were estranged. The Family Court Judge found that both parties had contributed to the state of the relationship. Nevertheless, the Judge found that the claimant had assisted her mother over the years, providing her (and her husband) with accommodation for 10 years and also guaranteeing a loan for an ownership flat. The claimant (and her husband) were also in a somewhat difficult financial position, being superannuants with virtually no assets as a result of criminal activity by one of their sons. The Judge also took into account that some years before their grandmother’s death, each of the grandchildren had received a gift of $9,000 from her.
[77] There was no dispute in H v J that there had been a breach of moral duty to claimant. The question was therefore what was required to remedy that breach. In balancing all relevant matters, including those referred to at [76] above, the Judge awarded the claimant 50 percent of her mother’s estate, with the remaining 50 percent to be divided equally between the grandchildren. In reaching this result, the Judge expressly recognised that because the estate was relatively small, it was not possible to do justice to all parties.41
[78]The facts in the present case are, in my view, materially different to those in
H v J. First, the deceased’s estate is much more substantial and is, as noted by the
40 H v J FC Nelson FAM-2007-042-200, 8 June 2007.
41 At [12].
Judge, sufficiently large to accommodate the various moral claims to it. Second, Ms P’s financial position does not compare in my view to that of the claimant in H v J. I also take into account the not insignificant bequest to Ms P from G’s estate, a point that will have been known to the deceased. Third, and while the relationship between Ms P and her father had rekindled in more recent times, there is no suggestion Ms P provided any significant financial or other similar support to her father during his lifetime. While that is of course partly a function of distance between the parties, it is also no doubt a function of the fractured and sometimes difficult relationship between them. As the Judge noted, while the reason for the breakdown in the relationship lay predominantly with the deceased, Ms P herself was not wholly without blame.
[79] Standing back, I do not consider that the way in which the Judge structured the sharing of the residue of the estate to be irrational or unreasonable, in the sense that his decision was plainly wrong. Rather, the Judge adopted the orthodox approach of looking to leave the deceased’s intentions (including to leave substantial gifts to his grandchildren) intact as much as was reasonably possible, while making an award sufficient to remedy the deceased’s breach of his moral duty. Indeed, in concluding that the incidence of the award to Ms P should only affect the bequests to her children, the Judge may well have had in mind the principles noted in the authorities referred to by Mr Meys. For instance, the Judge expressly noted that it was appropriate in his view to reduce the amounts left to the grandchildren given “in the normal course of events … they can expect to inherit from their mother whatever may be left of her award in the future.”42 I am also mindful that the deceased’s bequests to his grandchildren will indirectly provide for Ms P. They will relieve her (to a certain extent) from the need to financially support her two children as they enter early adulthood.
[80]For these reasons, the first ground of appeal must fail.
Second ground of appeal
[81] Ms P’s second ground of appeal is that the Judge erred in his understanding that the award made in favour of Ms P amounted to approximately 23 percent of the
42 At [62].
deceased’s estate. Mr Meys notes that the Judge considered the breach of moral duty in this case to be serious, and plainly intended for the actual award to Ms P to be very near or at the top of the available range. As noted, Mr Meys submits that on the basis of updating evidence about the valuation of the Newmarket apartment, the award to the deceased reflects only some 19 percent of the estate.
[82] The second aspect of this ground of appeal is that the award is insufficient to enable Ms P to purchase her own home (debt free) in the Netherlands.
[83] Turning to the value of the Newmarket apartment, the uncontested evidence in the Family Court was that it had a value of $925,000. Ms P sought leave to file further evidence on the appeal, being valuation evidence that as at November 2020, the apartment’s value is now $1.175 million. On the basis of that valuation, the overall proportion (by value) of the estate left to Ms L increases and Ms P’s share decreases (as noted from 23 percent to 19 percent).
[84] Ms L did not oppose leave to being granted to adduce this further evidence, though Ms Grant stated that if it were admitted, she would want to cross examine the valuer about his evidence. Ms Grant also sought leave for Ms L to file two affidavits in reply, which raised concerns about the manner in which the valuer had gone about his valuation, and relevant matters he had not taken into account but ought to have.43
[85] In the event, with agreement by counsel, I granted leave for all these materials to be filed on the appeal. A difficulty arose, however, in that the valuer who had provided the affidavit for Ms P was not available to attend the hearing and be cross- examined.
[86] In the ordinary course, evidence directed to a change in the value of the estate between the hearing of the first instance application and any appeal should only be admitted on the appeal if it demonstrates a reasonably significant change in value – at least to an extent relevant to the appeal court’s assessment of the appeal. For example, in Little v Angus, the Court of Appeal took into account the appreciation in value of an
43 Being leaky building issues and the prospect of a development to the south of the building, which would have significant adverse impacts on the views from the apartment
estate between the date of the High Court hearing and the hearing in the Court of Appeal, because the increase in value made it abundantly clear that the estate was ample to satisfy the needs of the beneficiary under the will and his family.44 Ms Grant also directed me to Re Wakarua, which at first instance had involved a very modest award based on the value of the estate as at the date of death, but which was revisited as a result of a significant increase in value by the date of the hearing.45
[87] The suggested increase in value in this case, however, is not particularly significant. Further, the valuer was not available to be cross-examined on the points raised in Ms L’s reply affidavits.
[88] The Newmarket apartment may well be worth a little more now than it was at the time of the Family Court judgment, given the passage of time (which would likely be the case in many if not most estates which include real property). Conversely, the apartment may be worth less if the suggested issues concerning leaks and nearby development are taken into account. In the absence of either agreement on the increase in the apartment’s value, or the opportunity for contested evidence on that topic to have been properly tested, I do not put any real weight on the updating evidence.
[89] On this basis therefore, and even if I were to assume a modest increase in the apartment’s value (with the result, for example, that the award to Ms P sits around the 20 percent mark), revisiting the Judge’s award would in my view be “tinkering”, and thus inconsistent with the proper approach to an appeal of this kind.
[90] Turning to the submission that the Judge erred in not making an award sufficient to enable Ms P to purchase a property in the Netherlands debt free, I do not agree. The Judge recorded that he had been invited to make an award sufficient to purchase a home of a reasonable standard in the Netherlands. I accept Mr Meys’ submission that there was no particular evidence before the Court about the expectations in Europe as to home ownership generally. But having read the evidence and notes of evidence, it does not appear to me that Ms P’s claim was advanced predominantly on the basis that she should be awarded enough to purchase a home in
44 Little v Angus [1981] 1 NZLR 126 (CA) at [70].
45 Re Wakarua (1989) 4 FRNZ 650 (HC) at 652-653.
the Netherlands debt free. It is correct that in her affidavit, Ms P set out a mortgage calculation and stated that on her salary at her age, she would never be able to afford a home. But the question of (debt free) home ownership does not appear to have loomed large at the hearing.
[91] Further and more importantly, I do not accept that the Judge erred in any event in not making an award which would enable Ms P to purchase her own home in the Netherlands debt free. Despite the approach taken by the Court of Appeal in Auckland City Mission v Brown,46 it is clear that that decision does not stand for the proposition that a child of a testator ought as a matter of principle receive an award sufficient to enable them to purchase (debt free) a suitable home for them and their family.47 Indeed, a reading of the Court of Appeal’s decision makes it clear that the award in that case was (unsurprisingly) tailored to the specific facts before the Court. In addition, the total provision made to the daughter amounted to a little under 20 percent of the testator’s estate (and reflected a significant reduction to the award that had been made in the High Court). The award to Ms P in this case therefore compares favourably to the outcome in Auckland City Mission v Brown.
[92]The second ground of appeal must also fail.
Third ground of appeal
[93] To recap, Ms P submits that the Judge put insufficient weight on the deceased’s previous will and the relationship property agreement between the deceased and Ms L.
[94] In relation to the deceased’s previous will, Mr Meys relied predominantly on this Court’s decision in Harrison v Harrison.48 In that case, the care of the deceased had been overtaken by the testator’s grandchildren, following an assault against the deceased by his only son (the claimant). The deceased’s new will excluded the claimant and left the entirety of the estate to the grandchildren. The claimant opposed probate being granted on the new will (on the basis the deceased lacked testamentary
46 Auckland City Mission v Brown [2002] 2 NZLR 650 (CA).
47 See, for example Henry v Henry (2007) NZCA 42 at [78].
48 Harrison v Harrison (2007) 26 FRNZ 532 (HC).
capacity), but if the new will was granted probate, the claimant made a claim under the Act for provision from the estate.
[95] Simon France J determined the matter on the basis of a lack of testamentary capacity and undue influence. It was in the context of the capacity argument that the Judge contrasted the position under the new and old wills, and made the particular observations upon which Ms P relies.49 I therefore do not accept Mr Meys’ submission that the Court considered the “overlapping factors” for the probate and Family Protection Act claims together, or that the Judge’s reasoning on the capacity issue is of direct relevance in this case.
[96] It is correct, however, that the Judge made some observations (albeit brief) on the claim for proper maintenance and support. His Honour noted that on the facts of that case, the claimant had the primary moral claim to support, and that his claim was “irresistible”. With respect, that must be correct. The claimant was 73 years of age, living in rented accommodation with his only income being National Superannuation. As a result, he had had an “encouraged dependency” on support from his parents over an extended period of time.50 The moral duty owed by the testator to the claimant was, therefore, a “duty that all past wills, other than the one … held to be invalid, have recognised.”51 In that context, the Judge noted that either of the testator’s earlier wills would have met the duty owed to the claimant.
[97] But I do not see these observations as being of any direct relevance to the present proceedings, and they certainly do not suggest the Judge fell into error in making the award he did. As noted, there was no dispute that the deceased owed Ms P a moral duty. There is also no doubt that the deceased’s December 2016 will recognised and would have satisfied that duty. But that does not itself say anything about what is required in the present circumstances to remedy the breach of duty under the deceased’s last will. In particular, it cannot be drawn from Harrison v Harrison that the only appropriate means of remedying the duty in this case would be to resort
49 Namely that the testator did not understand the competing claims he had to weigh in the balance, and what he did in his new will was “not affirming, or adjusting, his assessments, but was totally changing them”. (At [68].)
50 At [102].
51 At [102].
to the terms of the deceased’s earlier will.52 In other words, it would not be appropriate to view the provision made in an earlier will as some kind of yardstick or benchmark as to the minimum amount required to remedy a breach of moral duty in the context of a later will. This is particularly so when a testator, with capacity, has made a deliberate choice to alter the distribution of his or her estate.
[98] The Judge was nevertheless plainly aware of and took into account the terms of the deceased’s earlier will, expressly noting that the assessment of quantum of the award to Ms P could be “informed” by the provision in that will.53
[99] Ms P also submits that “there can be no question that up until 6 months before [the deceased’s] death the grandchildren could not have argued they were entitled to more than $300,000”.54 But this again considers the issue through the wrong lens. For the reasons traversed, it is not for them to justify the higher bequest made to them, or for the Court to consider and rule on the appropriateness of the change between the two wills.
[100] Accordingly I discern no error in the Judge’s approach to the deceased’s earlier will.
[101] As to the argument that the Judge ought to have ascribed additional weight to the $500,000 payment to Ms L, Mr Meys did not make any substantive submissions on this point, other than suggesting that the Judge erred by placing little weight on the RPA agreement. But the $500,000 amount did not form a part of the deceased’s estate and therefore was not of direct relevance to the incidence of the award made in Ms P’s favour. Further, the size of the estate meant that it was possible for the deceased to meet his duty to Ms P while still satisfying his desire to recognise and provide for Ms L and his grandchildren. The Judge correctly noted that it was not for Ms L to justify what she had inherited pursuant to the deceased’s will. Nor was it incumbent on her to justify arrangements made between herself and the deceased externally to his will; there was no claim, for example, of undue influence by Ms L. For these
52 Harrison v Harrison (2007) 26 FRNZ 532 (HC).
53 [P] v Lucas [2020] NZFC 7118 at [54].
54 The amount to be held on trust for them pursuant to the terms of the deceased’s earlier will.
reasons, I am not persuaded the Judge erred in his approach to the relationship property agreement.
[102]The third ground of appeal is dismissed.
Fourth ground of appeal
[103] As noted earlier, Ms P’s fourth ground of appeal is that a life interest granted to Ms L in relation to the Newmarket apartment would have been sufficient to address her moral claims.
[104]Mr Meys refers in this context to TB v JB, in which the Court stated that:55
… Mr B’s breach of moral duty here could be addressed in another way. This would be to award only a life interest in his estate to Mrs B with a gift over of the residuary estate to S1, J, S2, C and M on her death. This alternative remedy is often regarded as appropriate in family protection claims where the contest on the death of one parent, for example a father is between, on the one hand, his natural children and on the other, his second spouse, their stepmother.
(emphasis added)
[105] I accept, however, counsel for Ms L’s submission that as the deceased’s estate was large enough to do justice between the parties, the Judge did not need to resort to interfering with the deceased’s clear intention to gift a freehold interest in the Newmarket apartment to Ms L. It also cannot be suggested that the Judge did not consider this option, expressly stating in his judgment that he had done so, though concluding that it would involve too significant a rewrite of the deceased’s will.56
[106] Further, I do not consider the courts should too readily convert a bequest of ownership of property to one of a life interest only, particularly when there are other reasonable options available for distribution of the estate (as there were in this case). Freehold ownership versus a life interest are quite different propositions, and can leave family members in dispute “tied” to each other for many years into the future. In this case, Ms L is in her fifties. Granting a life interest in this case would require the estate to be responsible for administering the apartment potentially for many years to come.
55 TB v JB [2014] NZHC 1478, [2015] NZFLR 9 at [73].
56 [P] v Lucas [2020] NZFC 7118 at [60].
[107] Ms P also refers to s 4A of the Family Protection Act 1955, which places restrictions on the orders a court can make in the context of de facto relationships that have lasted less than three years. I accept that the relationship between the deceased and Ms L was relatively short, spanning a period of just over two years. But there is also no doubt that it was a fairly intense relationship, and involved Ms L caring for the deceased on a 24/7 basis. I accordingly I do not consider the Judge erred or failed to take into account any relevant considerations in this regard. He was plainly alive to the nature of the deceased and Ms L’s relationship and observed that while “she may have made the most of her opportunities as they presented themselves”,57 she was not to be criticised for that. The Judge ultimately concluded that:58
There is no doubt she provided companionship, care and attention to the deceased from the moment she moved in with him. Her tasks became onerous and difficult the more unwell and incapacitated he became. His words at their wedding demonstrated the feelings he had for her and he was entitled to provide for her in the manner he did.
[108] Finally, Ms P submits that the Judge did not consider s 7 of the Act or expressly exclude Ms L’s share of the estate from the incidence of the award to Ms P.
[109]Section 7 of the Family Protection Act 1955 relevantly provides as follows:
7 Incidence of payments ordered
(1)The incidence of the payment or payments ordered shall, unless the court otherwise determines, fall rateably upon the whole estate of the deceased, or, in cases where the authority of the court does not extend or cannot directly or indirectly be made to extend to the whole estate, then to so much thereof as is subject to the authority of the court.
(2)The court shall have power to exonerate any part of the deceased’s estate from the incidence order, after hearing such of the parties who may be affected by the exoneration as it thinks necessary, and may for that purpose direct any administrator to represent, or appoint any person to represent, any such party.
…
(emphasis added)
57 At [58].
58 At [58].
[110] The Court’s discretion to exclude any part of the deceased’s estate from the incidence of an award is a wide one, to be exercised according to “the rules of reason and justice”59 and with due regard to the circumstances of the case.60
[111] Mr Meys submits that during his closing submissions at trial, the Judge expressed the tentative view that he was unsure how Ms L would be able to make any contribution that she were ordered to pay, and that Mr Meys had emphasised that no such assumption about Ms L’s inability to meet a small award could safely be made. But this is an appeal against Judge Ryan’s judgment. It is not an appeal against (undocumented) comments the Judge made during his interactions with counsel. In other words, it is not appropriate to go behind the contents of the judgment and the reasoning contained in it.
[112] While the Judge did not state in express terms that he excluded the bequests to Ms L from the incidence of the award, that is plainly the effect of the conclusion he reached and the formal orders he made. His reasoning for this is also clear. He traversed in some detail the relationship between the deceased and Ms L, recognised the significant care and support she provided to him in the last years of his life, took account of the depth of the deceased’s feelings and gratitude to her (as expressed during their wedding) and took into account the deceased’s intention and desire for Ms L to have the apartment in Newmarket. Overall, the Judge concluded that:61
Looking at the overall picture of the result of this award I am satisfied that orders in these terms makes as little interference with the testator’s intention as possible, especially in relation to his widow and still reflects ultimately his desire to help his two granddaughters establish themselves in their early adulthood.
(emphasis added)
[113] I therefore do not accept that excluding Ms L’s bequests from the incidence of the award was in error, or that the Judge did not give sufficient reasons for why he adopted that approach.
59 Sharp v Wakefield [1891] AC 173, at 179, per Lord Halsbury.
60 Re Swanson (deceased) [1976] 2 NZLR 27 (SC) at 30.
61 [P] v Lucas [2020] NZFC 7118 at [63].
Result and costs
[114]For the above reasons, Ms P’s appeal is dismissed.
[115] The parties did not address me on costs. Should they not be able to agree on costs, any party seeking costs may file a memorandum within 15 business days of the date of this judgment. The remaining party/parties may then file a memorandum in response within a further five working days. I will thereafter determine costs on the papers. No memorandum is to be longer than three pages in length.
Fitzgerald J
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