AP v Lucas - [2021] NZHC 1017

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…

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 AP v Lucas

Details

AGLC: AP v Lucas [2021] NZHC 1017
Case: [2021] NZHC 1017
Decision Date: 7 May 2021

CaseChat Overview and Summary

AP appeals against a decision of the Family Court to make a provision in her favour from her late father's estate. The deceased's last will and testament left AP some chattels of sentimental value, and the residue of the estate to his two granddaughters. AP commenced proceedings under the Family Protection Act 1955 seeking further and better provision from the deceased's estate. The Family Court Judge concluded that there had been a breach of the deceased's moral duty to AP, and ordered that the residue of the estate be divided into thirds, with AP to receive one-third, and each of the two granddaughters to receive one-third upon attaining the age of 21 years. AP appeals against this decision. The appeal raises issues concerning the principles which apply to claims for further provision under the Act, and the exercise of the Family Court Judge's discretion in determining the remedy to be granted. The appeal is dismissed.

Orders