Barnard v Robertson - [2022] NZHC 469

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2020-454-53

[2022] NZHC 469

IN THE MATTER of the Family Protection Act 1955

AND

IN THE MATTER

of the Estate of Margaret Isabel Barnard

BETWEEN

GRAEME WHATMAN BARNARD

Plaintiff

AND

CHRISTOPHER MARK ROBERTSON, ROGER THOMAS BARNARD and GRAEME WHATMAN BARNARD

Defendants

Hearing: 28 February 2022

Counsel:

T G A Manktelow and H Clode for Plaintiff J G A Day for C Robertson and G Barnard G A Paine for Trustees

Judgment:

15 March 2022

JUDGMENT OF SIMON FRANCE J

Introduction

[1] Mrs Margaret Barnard was survived by her three sons – Graeme, Roger and Timothy.1 Each was provided for in her will but a distinction was drawn between Graeme and the other two sons. As at the date of the hearing the estate is valued at
$4.4 million. The bulk of the value comes from a share portfolio worth almost
$3.2 million.

1 One son, Roger, has since died.

BARNARD v ROBERTSON [2022] NZHC 469 [15 March 2022]

[2] In this proceeding Graeme makes a claim for further provision under the Family Protection Act. He says assistance provided by him to his mother has not been properly recognised, and nor have his financial needs.

[3]The will can be considered in three parts:

(a)the residue consisted of Mrs Barnard’s house (now sold) and some jewellery. It is divided equally, and will give each son (or Roger’s estate) $290,000;

(b)a one-third share in Graeme’s house and land. This was acquired when in 2007 Mrs Barnard gave Graeme between $200,000 and $250,0002 to enable him to buy out his wife from whom he was separating, and meet some other debts. In the will Mrs Barnard gifts this one-third share back to Graeme, and makes a specific gift of $250,000 to each of the other two sons. In 2008 Mrs Barnard made a will with this structure included, and then repeated it unchanged in the operative 2013 will. The one-third share is now worth $386,000;

(c)the share portfolio is where the dissimilar treatment occurs. Its value is first reduced by $500,000 to meet the two $250,000 gifts. It is then divided into thirds, but whereas Roger and Timothy receive their shares absolutely, Graeme receives only a life interest in his share. On his death his one one-third is divided equally among the other two brothers (or their children if either predeceases Graeme).

[4] There is no direct evidence on the matter but for analysis purposes for the case, figures provided by Mr Day in his submissions and not contested by Mr Manktelow can be used. Using the Estate and Gift Duties Act formula, the life interest could be valued at $374,353. The expected tax-paid annual income is $26,000.

2 As with most matters the parties disagree on the quantum.

Mr Barnard’s circumstances (excluding benefits from will)

[5] Mr Barnard’s home is owned by a family trust of which he describes himself as the beneficiary. This…

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 [2022] NZHC 469
Case: [2022] NZHC 469
Decision Date: 15 March 2022

CaseChat Overview and Summary

Graeme Barnard brought a claim for further provision from his mother's estate under the Family Protection Act 1955. He argued that the estate had not properly recognised his assistance to his mother, and his financial needs. The estate was valued at $4.4 million, largely coming from a share portfolio. The will provided unequally between Graeme and his brothers, with Graeme receiving a life interest in his share of the portfolio rather than an absolute gift. Graeme argued that he had contributed to the estate and assisted his mother more than his brothers. The other parties disputed this, and the affidavits were not entirely clear. Graeme's financial situation was not particularly poor, but he was cash poor and relied on national superannuation and income from his own shares. The court found that Graeme had provided assistance to his mother but not to an extraordinary degree. The will was unfair in its treatment of Graeme, but he had been properly provided for. The court dismissed the claim.

Orders