Barry v Bradshaw
[2025] NZCA 335
•17 July 2025 at 3.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA790/2024 |
| BETWEEN | DOROTHY ELAINE BARRY |
| AND | LESLEIGH KAREN BRADSHAW |
| Hearing: | 19 June 2025 |
Court: | Katz, Lang and Downs JJ |
Counsel: | G J Haszard and R L Powell for Appellant |
Judgment: | 17 July 2025 at 3.30 pm |
JUDGMENT OF THE COURT
A The appeal is allowed.
B The High Court judgment is set aside.
CWe make an order varying the deceased’s will to provide the appellant with a bequest of the deceased’s interest in the property. The bequest is subject to the appellant paying the second respondent $30,000 upon death of the appellant or sale of the property, whichever occurs earlier.
DThe first and second respondents together must pay one set of costs to the appellant for a standard appeal on a band A basis, together with usual disbursements.
EThe costs order in the High Court is set aside. Costs in the High Court are remitted to that Court for determination in light of this judgment.
____________________________________________________________________
REASONS OF THE COURT
(Given by Lang J)
Ms Dorothy Elaine Barry (known as Sally) is the widow of Mr Brian Nikora Barry (Brian), who died on 30 December 2021. Sally and Brian had been married for 55 years at the time of Brian’s death, having married on 18 February 1967. There were no children of their marriage.
Brian left a will dated 3 September 2001 in which he left his entire estate to Sally, provided she survived him. The only significant asset in Brian’s estate was his one-half share of the property in which he and Sally had been living until he went into rest home care on 8 July 2019 (the property). Sally is still living in that property.
The respondents, Lesleigh Karen Bradshaw (Karen) and Annmarie Dorothy Barry (Annmarie), are Brian’s daughters from a relationship he entered into with their mother, Florence, in or about 1963. Karen and Annmarie issued a proceeding in the High Court in which they sought provision from Brian’s estate under the Family Protection Act 1955 (the Act). Sally resisted their claim.
In a judgment issued on 6 November 2024, Churchman J found that Brian had breached his moral duty to both Karen and Annmarie by not making provision for them in his will.[1] He made an order varying Brian’s will so as to give Sally a life interest in Brian’s half share of the property.[2] The Judge made a further order that Karen and Annmarie are each to receive the sum of $80,000 upon Sally’s death or the sale of the property, whichever occurred earlier.[3]
[1]Barry v Bradshaw [2024] NZHC 3287 [judgment under appeal] at [79].
[2]At [97].
[3]At [98]. The Judge gave Karen and Annmarie the ability to lodge a caveat against the title to the property to protect their right to receive these payments: at [99].
Sally appeals against the Judge’s decision. She contends that Brian did not breach his moral duty to Karen and Annmarie given the duty that he owed to her. In the alternative, she argues that the Judge made an award in favour of Karen and Annmarie that was too large having regard to all relevant circumstances.
Background
Annmarie was born on 5 June 1964. By the time Karen was born on 5 October 1965, Brian and Florence had ended their relationship.
Brian lost contact with Annmarie and Karen in the mid-1960s shortly after he and Florence separated. In 1979, Florence and the children emigrated to Australia. Karen and Annmarie have lived in Australia since that time.
Brian re-established contact and first visited them in Australia after Florence was arrested and taken into custody in 1982. Brian subsequently visited Karen and Annmarie, and would sometimes stay with them, on other occasions when he travelled to Australia between 1982 and 1998. On one of these visits, he attended Karen’s wedding in February 1984. In 1993, one of Brian’s friends gave him money to pay for Karen and her children to visit him in New Zealand for seven weeks. Karen also attended a family reunion in New Zealand in 1994.
It seems to be common ground that there was virtually no contact between Karen and Brian between 1998 and 2016. The Judge found that this was due to an incident that occurred after Karen’s son went to stay with Brian and Sally for approximately a year in 1998. During the ensuing period of estrangement Brian continued to have contact with Annmarie through regular telephone calls.
Karen re-established contact with Brian in October 2016. She also travelled to New Zealand to visit him on three occasions between April 2017 and December 2018. In a visit that took place in November 2017, Karen and her husband helped to carry out refurbishment work on Brian’s property. Karen and her husband returned to New Zealand for Christmas in 2018 and took Brian to the area where he had grown up as a child and to visit his parents’ grave. Thereafter, Karen and Brian kept in touch with weekly telephone calls.
In June 2019, Sally told Karen that Brian was in hospital following a fall and in early July he was admitted to rest home care. Karen and her husband flew to New Zealand to visit him the following week. During this visit, she and her husband helped to clear rubbish and belongings from Brian and Sally’s property. Thereafter there was no contact between Sally and Karen. However, Karen kept in regular contact with Brian through FaceTime calls until April 2020. Thereafter, the COVID 2019 pandemic intervened and she did not attempt to visit him again until she was able to travel to New Zealand in May 2021. The Judge found that she was prevented from seeing Brian on this occasion because of instructions given to hospital staff by Sally.[4] However, Karen continued to maintain contact with Brian through FaceTime calls every weekend until the date of his death.
The law
[4]At [31].
The Act permits those entitled to make a claim, including children of the deceased, to apply to the Court for provision to be made from the estate of a deceased person for their “proper maintenance and support”.[5] In determining such a claim the Court is required to decide whether the deceased breached a moral duty to provide for the claimant. This issue must be assessed on the basis of the situation as it existed at the time the deceased died.[6] In determining whether there has been a breach of moral duty, the considerations noted by Randerson J in Vincent v Lewis are commonly cited:[7]
[5]Family Protection Act 1955, s 4(1).
[6]O’Neill v O’Neill [2021] NZCA 585 at [15], citing Bill Patterson Law of Family Protection and Testamentary Promises (5th ed, LexisNexis, Wellington, 2021) at 49.
[7]Vincent v Lewis [2006] NZFLR 812 (HC) at [81].
a)The test is whether, objectively considered, there has been a breach of moral duty by [the deceased] judged by the standards of a wise and just [will-maker].
b)Moral duty is a composite expression which is not restricted to mere financial need but includes moral and ethical considerations.
c)Whether there has been such a breach is to be assessed in all the circumstances of the case including changing social attitudes.
d)The size of the estate and any other moral claims on [it] are relevant considerations.
e)It is not sufficient merely to show unfairness. It must be shown in a broad sense that the applicant has need of maintenance and support.
f)Mere disparity in the treatment of beneficiaries is not sufficient to establish a claim.
g)If a breach of moral duty is established, it is not for the court to be generous with the testator’s property beyond ordering such provision as is sufficient to repair the breach.
h)The court’s power does not extend to rewriting a will because of a perception it is unfair.
i)Although the relationship of parent and child is important and carries with it a moral obligation reflected in the Family Protection Act, it is nevertheless an obligation largely defined by the relationship which actually exists between parent and child during their joint lives.
As Churchman J noted, the test for maintenance and support in this context was described in Williams v Aucutt as follows:[8]
The test is whether adequate provision has been made for the proper maintenance and support of the claimant. “Support” is an additional and wider term than “maintenance”. In using the composite expression, and requiring “proper” maintenance and support, the legislation recognises that a broader approach is required … “Support” is used in its wider dictionary sense of “sustaining, providing comfort”… Just what provision will constitute proper support … is a matter of judgment in all the circumstances of the particular case … And where there is no economic need it may also be met by a legacy of a moderate amount. On the other hand, where the estate comprises the accumulation of the family assets and is more than sufficient to meet other needs, provision so small as to leave a justifiable sense of exclusion from participation in the family estate might not amount to proper support for a family member.
[8]Judgment under appeal, above n 1, at [40]; and Williams v Aucutt [2000] 2 NZLR 479 (CA) at [52].
As this Court recently observed in O’Neill v O’Neill, the question whether there has been a breach of moral duty to provide maintenance and support is a threshold issue that turns on an assessment involving matters of fact, law and degree.[9] An appellate court is required to consider that issue afresh in accordance with the principles discussed in Austin Nichols & Co Inc v Stichting Lodestar.[10] Once a breach of moral duty has been found to exist, the selection of an appropriate remedy will be a matter of discretion.[11]
The Judge’s decision
[9]O’Neill v O’Neill, above n 6, at [17].
[10]Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
[11]Talbot v Talbot [2017] NZCA 507, [2018] NZFLR 128 at [37].
The Judge began his analysis by noting the relevant factors to be taken into account in determining whether Brian had breached his moral duty to Karen and Annmarie. These included the nature of his relationship with his daughters, the size of the estate, the financial needs of Sally and the daughters, the need to recognise familial connection and belonging, contributions made during Brian’s lifetime, entitling or disentitling conduct by the parties, repair of parental abuse and neglect.[12]
[12]Judgment under appeal, above n 1, at [58]–[71] and [72]–[79].
The Judge concluded that Karen had a close relationship with Brian apart from the two periods of estrangement that occurred between the mid-1960s and 1982, and 1998 and 2016. The closeness of the relationship was demonstrated by the fact that Brian had attended Karen’s wedding and had then looked after Karen’s son for approximately a year. They also had regular phone calls and Facetime contact in later years.[13]
[13]At [61]–[62].
The Judge found that Annmarie did not enjoy as close a relationship with her father as Karen. This was demonstrated by the fact that Annmarie did not know Brian was ill in 2019 until she was informed of that fact by her daughter, who was living in New Zealand at the time.[14] Annmarie did not visit Brian in New Zealand but the Judge noted that this needed to be viewed in the light of her difficult financial situation.[15] In any event he visited her from time to time in Australia between 1982 and 1998. Brian also had regular telephone contact with Annmarie and this continued until his health deteriorated.[16]
[14]At [73].
[15]At [74].
[16]At [73].
The Judge noted that Karen was 59 years of age at the date of the hearing. She has four adult children and 11 grandchildren. Karen and her husband are both employed and have a combined income of approximately $165,000. They also have net assets totalling approximately $900,000. Karen’s financial position was such that the Judge concluded she could not be considered to be in financial need. He noted, however, that given her age, she has limited future earning potential.[17]
[17]At [69].
By contrast, the Judge noted that Annmarie was clearly in financial need. She had no savings and her only income was from an unemployment benefit in the sum of $780 per fortnight. She has minimal net assets and faces several health issues which mean she is now unable to work. The Judge found that, given her present age of 60 years, Annmarie’s health-related costs are likely to increase in the future.[18]
[18]At [76].
Florence has also passed away and left no assets for her daughters to inherit. In addition, Annmarie is divorced. It appears the only money she could potentially inherit is from her father’s estate.[19] The Judge found that Annmarie’s financial needs were great, and that this offset her less proximate relationship with Brian to the point where her position was roughly equivalent to Karen’s.[20]
[19]At [77].
[20]At [78].
The Judge considered there was a degree of parental neglect on Brian’s part. He failed to make child maintenance payments after 1968. Without financial support from Brian, Florence experienced financial hardship as she sought to support her family. Brian had also made no attempt to build a relationship with his daughters during their childhood and teenage years. The Judge accepted, however, that it would have been difficult for Brian to maintain a relationship with his daughters given that they lived in Australia and he lived in New Zealand.[21]
[21]At [66].
The Judge found there was no evidence to suggest that Brian had made any contributions to or provision for his daughters during his lifetime. However, as already noted, Karen and her husband had on occasions rendered assistance and support to Sally and Brian.[22]
[22]At [68].
Turning to the size of the estate, the Judge observed:
[70] In Allen v Manchester, Salmond J identified two classes of case based on the size of the estate. He distinguished between those cases where the smallness of the estate meant the applicant is competing with others who have a moral claim which required the Court to ensure the estate is justly divided between the persons with a moral claim in proportion to the relative urgency of their claims and those cases where the estate was large enough to discharge all of the moral duties.[23]
[71] This case involves an estate of very modest size, being a half-share in the Property whose value appears to range between $425,000 and $480,000. Consequently, the estate is worth between $212,500 and $240,000. This clearly limits the Court’s ability to do justice to all moral claimants, despite there only being three such claimants …
[23]Allen v Manchester [1922] NZLR 218 at 221.
The Judge ultimately concluded Brian had breached his moral duty to both Karen and Annmarie for the following reasons:
[79] The deceased owed a moral obligation to both Karen and Annmarie. The fact that their mother chose to take them to Australia when they were small was something beyond their control. The difficult financial circumstances they were brought up in were compounded by the fact the deceased did not pay maintenance for them. In accordance with their means, they each enjoyed significant contact with the deceased during their adult lives. The deceased owed them a duty which he breached.
The question of remedy was complicated by the fact that, by the time the Judge heard the claim, Sally had transferred Brian’s half share in the property to herself. This meant that, if a remedy was required, it would need to be implemented through the imposition of a tracing or following order to retrieve Brian’s half share of the property for the benefit of his daughters.[24]
[24]Judgment under appeal, above n 1, at [81].
The Judge was satisfied it was not appropriate for Karen and Annmarie to receive the whole of Brian’s estate.[25] This was because he also owed a moral duty to Sally as his wife of 55 years. She had provided the overwhelming majority of the care and support to Brian throughout his lifetime. She also provided most of the income during their marriage and used redundancy payments to repay outstanding loans.[26]
[25]At [83].
[26]At [84].
The Judge noted that Sally’s only income was from superannuation payments that amounted to approximately $30,000 per annum. Her only assets other than the property were a vehicle, furniture, a small number of shares and savings of approximately $10,000.[27] The Judge concluded that, based on her circumstances, Sally should not be deprived of the ownership of the property “at least prior to her wanting to move into a retirement village, if not during her lifetime”.[28] The Judge then determined that Sally should receive a life interest in Brian’s share of the property and that, when she died or the property was sold (whichever should come earlier), Karen and Annmarie should each receive a payment in the sum of $80,000 from the proceeds of sale or from Sally’s estate.[29]
The appeal
[27]At [85].
[28]At [86].
[29]At [91] and [95].
Sally advances numerous grounds of appeal, many of which relate to factual findings made by the Judge. However, these are of little moment for present purposes. The real focus of the appeal is on Sally’s argument that the Judge erred in determining that Brian breached his moral obligation to Karen and Annmarie by failing to make provision for them. Sally’s argument is based on the premise that the modest value of Brian’s estate effectively precluded him from making any provision for his daughters. She contends that Brian could only fulfil his moral duty to her by leaving the whole of his estate to her.
Did the Judge err in concluding that Brian breached his moral duty to Annmarie and Karen?
It is common ground that, as their father, Brian owed a moral duty to both Annmarie and Karen. We accept that some factors also suggest he may have breached this duty by not making provision for them in his will. These include the fact that they are obviously hurt by this decision. Further, they were not to blame for the periods during which they had no contact with their father. In any event, by the time of his death they were both in regular contact with him to the extent that they were able.
Karen obviously cannot advance a claim based on financial need. However, she could seek a recognition award given the closeness of her relationship with her father. Annmarie did not have such a close relationship with her father. However, she is plainly in need of both maintenance and support. Her financial situation can only be described as parlous.
We consider two factors to be decisive in the present case. The first is the extreme modesty of Brian’s estate. The Judge assessed his half share in the property as being worth $226,250.[30] That is a very small sum by any standard given the competing claims on his estate. The second is Brian’s duty to make provision for Sally given the length of their relationship and her financial needs.
[30]At [94].
The Judge was obviously of the view that the size of Brian’s estate was no barrier to making an award in favour of his daughters. This is evident from the following passage of the judgment, part of which we have already cited:
[71] This case involves an estate of very modest size, being a half-share in the Property whose value appears to range between $425,000 and $480,000. Consequently, the estate is worth between $212,500 and $240,000. This clearly limits the Court’s ability to do justice to all moral claimants, despite there only being three such claimants. The nature of the moral duty to Sally is not such that it precludes recognition of the duty to the plaintiffs. The primary moral duty to Sally is to ensure she has somewhere to live. Given Sally’s age and health issues that duty is likely to last for a relatively short period. It is therefore possible to craft a solution that allows the discharge of all moral duties.
The Judge made these observations whilst analysing the factors to be taken into account when assessing whether Brian had breached his moral duty to Karen. They came before he made his finding that Brian had breached his moral duty to both his daughters.
Sally was 77 years of age when Brian died. Her financial position was very modest. We accept that Brian’s primary duty was to ensure that Sally has somewhere to live following his death. The small size of his estate meant it was unlikely to be able to be used for any other purpose. The Judge appears to have been influenced in his reasoning by an assumption that, once the property is sold, Sally would be able to find alternative accommodation without recourse to the bulk of Brian’s half share of the sale proceeds. However, it cannot be assumed that this will be the case. Sally may need virtually all of the sale proceeds to enable her to acquire another property more suited to her needs. Alternatively, she may need those funds to enable her to obtain suitable rest home care.
We have concluded that the size of Brian’s estate precluded even a modest recognition award in Karen’s favour. This means he did not breach his moral duty to Karen by failing to make provision for her under his will.
The situation is different so far as Annmarie is concerned even though her relationship with Brian was not as close as that enjoyed by Karen. Annmarie’s financial situation at the date of Brian’s death was such that we consider he had a moral duty to provide her with maintenance and support to the extent that his estate allowed. He breached this duty by failing to make any provision for her in his will. However, we are satisfied that Sally’s needs are such that the breach must be remedied by making a lesser award than that considered appropriate by the Judge. We consider an award of $30,000 is appropriate to address the breach of moral duty to Annmarie.
We have considered whether Annmarie should be required to wait until Sally’s death before receiving her award. However, we see no adequate means by which to protect Annmarie’s interests once the property is sold. We therefore consider it preferable for Annmarie to receive the funds as soon as the property is sold.
We view the Judge’s approach in purporting to grant Sally a life interest in Brian’s one-half share of the property as problematic given that she would be required to pay any sum awarded to Annmarie if she sells the property before she dies. We prefer an outcome under which Brain’s will is varied to provide that Sally is to receive a bequest of Brian’s one-half share of the property. That bequest is subject to a condition requiring her to pay Annmarie the sum of $30,000 when she sells the property or upon her death, whichever occurs earlier. This would constitute an equitable interest in the property sufficient to support a caveat by Annmarie.
Costs in the High Court were to lie where they fall. We propose to remit the question of costs in the High Court to that Court, given Sally’s success in this appeal.
Result
The appeal is allowed.
The High Court judgment is set aside.
We make an order varying the deceased’s will to provide the appellant with a bequest of the deceased’s interest in the property. The bequest is subject to the appellant paying the second respondent $30,000 upon death of the appellant or sale of the property, whichever occurs earlier.
The first and second respondents together must pay one set of costs to the appellant for a standard appeal on a band A basis, together with usual disbursements.
The costs order in the High Court is set aside.Costs in the High Court are remitted to that Court for determination in light of this judgment.
Solicitors:
Willis Legal, Hastings for Appellant
Bramwell Bate, Hastings for Respondent