Barnard v Robertson - [2023] NZCA 230

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA180/2022
[2023] NZCA 230

BETWEEN	GRAEME WHATMAN BARNARD Appellant
AND	CHRISTOPHER MARK ROBERTSON, ROGER THOMAS BARNARD AND GRAEME WHATMAN BARNARD AS THE TRUSTEES AND EXECUTORS OF THE ESTATE OF THE LATE MARGARET ISABEL BARNARD Respondents

Hearing:	13 February 2023
Court:	Cooper P, Ellis and Churchman JJ
Counsel:	T G A Manktelow and H K Clow for Appellant G A Paine for Respondents W L Aldred and L E Kenner for the beneficiaries
Judgment:	13 June 2023 at 11.00 am

JUDGMENT OF THE COURT

A The appeal is dismissed.

BThe appellant must pay the beneficiaries costs for a standard appeal on a band A basis with usual disbursements. We do not certify for two counsel.

C The respondents’ costs are payable from the estate.

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REASONS OF THE COURT

(Given by Ellis J)

Margaret Barnard died on 27 June 2019, leaving three adult sons: the appellant Graeme Barnard, and his brothers Roger and Timothy.[1] Mrs Barnard left an estate valued at approximately $4.4 million; the only beneficiaries under her last will were her three sons. Her estate was not, however, divided equally between them.
[1]The three brothers will be referred to by their Christian names in this judgment, to avoid confusion. Roger died just before the case was heard in the High Court.
Graeme—who received less than Roger and Timothy under their mother’s will—brought proceedings under the Family Protection Act 1955 (the FPA) saying that his mother had failed in her moral duty to provide him with proper maintenance and support.
Graeme’s claim was dismissed by Simon France J in the High Court.[2] Graeme now appeals that decision.
[2]Barnard v Robertson [2022] NZHC 469 [High Court judgment].
Graeme’s claim was resisted in the High Court, as it continues to be resisted on appeal in this Court, by Roger’s estate and Timothy as the other beneficiaries of Mrs Barnard’s estate. For ease of reference, we refer to Roger’s estate and Timothy together as the beneficiaries. The respondents abide the decision of the Court, as they did before the High Court.

Background

The following overview narrative is not disputed.
In their younger years, Mrs Barnard and her husband, Mr James Barnard, owned and lived on a 100-acre sheep farm in Kairanga. Their three sons grew up on the farm. From the early to mid-1980s onwards all but approximately 10 acres of the farm was leased to a third party.
In 2002, well after the boys had all left, Mr and Mrs Barnard sold the farm and moved to Palmerston North, where they built a new home. Mr Barnard died in 2007. Apart from a short time spent in a rest home in 2018 shortly before her death, Mrs Barnard lived at the Palmerston North house for the rest of her life. The house has since been sold, and the proceeds form part of Mrs Barnard’s estate.
Graeme married in 1985 and had two sons. He and his wife…

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 Barnard v Robertson

Details

AGLC: Barnard v Robertson [2023] NZCA 230
Case: [2023] NZCA 230
Decision Date: 13 June 2023 at 11.00 am

CaseChat Overview and Summary

Graeme Barnard appeals a decision of Simon France J in the High Court to dismiss his claim that his mother breached her moral duty to him by not making proper provision for him in her will. Graeme argued that his mother, Margaret Barnard, had failed to provide him with proper maintenance and support because she had treated him less favourably than his brothers, Roger and Timothy, in her will. The appeal was heard by the Court of Appeal of New Zealand and was dismissed.

Graeme argued that his contributions to his mother’s estate and his care of her in her later years gave him a “special claim” to her estate. The Court of Appeal found no error in the High Court’s assessment that the evidence did not support Graeme’s claims of significant contributions and care. The Court found that the Judge’s assessment of the evidence, which took into account the contested nature of Graeme’s claims and the questionable reliability of the evidence offered in support of them, was not wrong.

The Court of Appeal found that Graeme’s share of the estate was around 20-25 per cent, which the Judge had concluded was a proper recognition of Graeme’s moral claim on the estate. Graeme argued that his share was only around 19 per cent, but the Court of Appeal found that this was a misunderstanding of the law. The Court found that Graeme’s share of the estate should not be assessed mathematically, but rather in terms of his need for maintenance and support. Graeme’s financial position before his mother’s death was not precarious and the will provided him with substantial property, capital and income. The Court of Appeal found that the Judge had not erred in concluding that Mrs Barnard had not breached her moral duty to Graeme. The appeal is dismissed and the Court orders that the appellant must pay the beneficiaries’ costs for a standard appeal on a band A basis together with the usual disbursements. The respondents’ costs are payable out of the estate.

Orders