BA v MA - [2013] NZHC 3072

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980.
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IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CIV-2013-443-277 [2013] NZHC 3072

BETWEEN BA Appellant

ANDMA & ORS Respondents

Hearing: 24 September 2013

Counsel: R Wilson for Appellant
K R Pascoe for Respondents
C E Clarke for Ministry of Social Development as guardians

Judgment: 20 November 2013

JUDGMENT OF WILLIAMS J

Introduction

[1] JA died on 21 April 2011. She left an estate valued at approximately

$7.3 million. JA was survived by five of her children, MA, KK, JM (known as JM), MD and BA. In her last will dated 23 January 2006, she divided her residuary estate into five parts. MA, KK, JM and MD each received one-fifth. She left two- fifteenths on trust for the benefit of BA (the protective trust). The approximate value of this share is $930,000. She left one-fifteenth to her trustees on trust for BA’s four children (the children’s trust fund). The approximate value of this share is $465,000.

[2] BA was not happy. She applied to the Family Court for relief under the Law

Reform (Testamentary Promises) Act 1949 and the Family Protection Act 1955 (the

FPA).

BA v MA & ORS [2013] NZHC 3072 [20 November 2013]

[3] On 20 June 2013, the court dismissed both claims.1 The court also ordered that the costs of the Ministry of Social Development (which represented the two of BA’s children who are not yet adults) be paid out of the protective trust.

[4] The appellant now appeals against the dismissal of her FPA claim and the decision as to costs.

Facts

[5] The appellant is a 50 year old invalid beneficiary with recurrent mental health issues. She has been in receipt of this benefit since 1986. Her husband is also a beneficiary. The appellant and her husband have four children aged 23, 20, 19 and
17. They have no savings or capital assets. The couple have no other sources of income apart from the appellant’s parents when they were alive, and now the protective trust under her mother’s estate. The appellant suffers from a depression related illness and has been admitted several times to the mental health unit at New Plymouth hospital. She was admitted twice in 2010. Her husband is a diagnosed schizophrenic. He was hospitalised for this condition in 2010.

[6] In 1989, the appellant’s parents placed a deposit of $11,000 on a house for the appellant and her husband. The appellant and her husband were to meet the mortgage repayments and pay the rates on the property. At some point they fell into arrears on the mortgage repayments and it appears the appellant’s parents took over the payments. The appellant’s sister KK says that the house was not maintained and suffered ongoing damage. The appellant disputes the extent of the damage. The property was sold in 1997 and the appellant received either $22,500 (the appellant’s…

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 BA v MA

Details

AGLC: BA v MA [2013] NZHC 3072
Case: [2013] NZHC 3072
Decision Date: 20 November 2013

CaseChat Overview and Summary

The appeal was brought by the appellant, BA, against the dismissal of her Family Protection Act 1955 (FPA) claim and the costs decision of the Family Court. The appellant sought to have the deceased's will set aside on the basis that the deceased had not made adequate provision for her proper maintenance and support. The deceased had left the appellant a sum of approximately $930,000 on trust under a protective trust. The appeal was allowed to the limited extent that the court ordered that the trustees distribute no less than 5% of the value of the trust corpus to the appellant annualised. The court also decided that half of the costs incurred by the Ministry of Social Development were to be paid out of the protective trust, with the remainder to be borne out of the entire estate.

Orders