Ashworth v Lambie - [2012] NZHC 1110

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2010-409-001986 [2012] NZHC 1110

BETWEEN NICOLA JAN ASHWORTH AND PHILIPPA MARY DIXON Plaintiffs

ANDPETER JOHN LAMBIE, SUSAN MABEL MURCHISON LAMBIE AND NICOLE COONEY TRUST CO LIMITED
First Defendants

ANDADRIENNE JUNE LAMBIE, PHILIP DALLAS BEAN AND TIMOTHY MICHAEL SILVER
Second Defendants

Hearing: 8 May 2012

Counsel: S P Rennie for Plaintiffs
G H Nation and A L van Deurs for First Defendants
M J Wallace for Second Defendants

Judgment: 24 May 2012

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 3.00pm on the 24th day of May 2012.

RESERVED JUDGMENT OF GENDALL J

[1] Trevor Maurice Lambie died on 14 August 2009. He had two daughters (Nicola and Philippa) and one son (Peter). His will essentially left the residue of his estate in almost equal shares to the three children, after the termination of their mother’s life interest. The daughters seek further provision out of his estate, which
has an approximate value of $990,000.

ASHWORTH V LAMBIE HC CHCH CIV-2010-409-001986 [24 May 2012]

[2] In the statement of claim, the plaintiffs initially sought orders that the Court impose a remedial constructive trust in their favour in respect of part of farm land originally owned by their father, but which had been transferred to their brother in about 1996. That cause of action was not pursued, and the case proceeded on the basis of the alternative claim pursuant to the Family Protection Act 1955.

[3] The first defendants are Peter, his wife and a professional trustee company in their capacity as trustees of Peter’s family trust. As such they remain active parties in the Family Protection claim because the trustees are beneficiaries under a provision in the will that reduces a debt owed by the trust to the estate (see [8(b)] below).

[4] The second defendants are the executors and trustees of the deceased’s estate,

being his widow, a solicitor, and an accountant.

The deceased’s estate and will

[5] The deceased and his wife had settled their assets as tenants in common in equal shares in 1992. This was on the advice of their accountant that there was merit in ensuring farming assets were owned jointly by a husband and wife to facilitate the transfer of those assets between generations and to better preserve those assets from potential duties or rest home fees. The combined net value of the assets, at the death of the deceased was $1,976,558. Accordingly the deceased’s estate value was
$988,279 made up largely by debts owing by Peter and his interests, a Term Deposit of about $150,000 and $19,000 being the deceased’s interest in the farming partnership with Peter.

[6] The debts owing by Peter and his interests arose out of the gradual transfer of the family farm assets, since the mid 1980s. Personal chattels of the deceased were left to his widow and until the “date of distribution” the trustees are to apply so much of 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 Ashworth v Lambie

Details

AGLC: Ashworth v Lambie [2012] NZHC 1110
Case: [2012] NZHC 1110
Decision Date: 24 May 2012

CaseChat Overview and Summary

Nicola Jan Ashworth and Philippa Mary Dixon sought orders under the Family Protection Act 1955 against the executors and trustees of the estate of their father, Trevor Maurice Lambie. The plaintiffs sought orders that the Court impose a remedial constructive trust in their favour in respect of part of farm land originally owned by their father, but which had been transferred to their brother in about 1996. That cause of action was not pursued, and the case proceeded on the basis of the alternative claim pursuant to the Family Protection Act 1955. The plaintiffs argued that the deceased failed to recognise his moral duty to provide in his will more generously for them, in order to recognise that they had not received lifetime benefits to the same extent as Peter. The defendants contended that the deceased did not fail to meet his moral duty to the daughters. The estate was a little under $1 million and although significant is not unusually large in present times. But, it is sufficiently large for the deceased to meet his moral duty to all three children, and the plaintiffs are recognised as family members by sharing the estate on a basis, close to equal, with their brother. The Court considered that the deceased and his then wife clearly had legal and accounting advice, obtained valuations, and carefully constructed their financial affairs, and future provision for all the children. The deceased knew the value of his estate and he knew that his widow would have, in her own right, assets to an equal value. He knew that the estate largely comprised debts owing by his son and that in order to provide as best he could for his daughters, Peter and his interests would need to find quite significant capital sums. The Court was not satisfied that the testamentary provisions made by the deceased should be interfered with. The claim against the first and second defendants was dismissed.

Orders