Barry v Bradshaw - [2025] NZCA 335

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA790/2024
[2025] NZCA 335

BETWEEN	DOROTHY ELAINE BARRY Appellant
AND	LESLEIGH KAREN BRADSHAW First Respondent ANNMARIE DOROTHY BARRY Second Respondent

Hearing:	19 June 2025
Court:	Katz, Lang and Downs JJ
Counsel:	G J Haszard and R L Powell for Appellant D M Kerr for Respondents
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…

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 Barry v Bradshaw

Details

AGLC: Barry v Bradshaw [2025] NZCA 335
Case: [2025] NZCA 335
Decision Date: 17 July 2025 at 3.30 pm

CaseChat Overview and Summary

In the matter of Barry v Bradshaw, Dorothy Elaine Barry, the widow of Brian Nikora Barry, appealed against a decision made by the High Court. The High Court had found that Brian had breached his moral duty to his daughters, Karen and Annmarie, by not making provision for them in his will. The Court ordered that Dorothy should have a life interest in Brian's half share of the property, and that Karen and Annmarie should each receive $80,000 upon Dorothy's death or the sale of the property. The appeal focused on whether Brian breached his moral duty to Karen and Annmarie by not making provision for them in his will.

The Court of Appeal found that the size of Brian's estate precluded even a modest recognition award in Karen's favour, and that he did not breach his moral duty to her by failing to make provision for her under his will. However, the Court found that Annmarie's financial situation at the date of Brian's death was such that 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. The Court of Appeal considered an award of $30,000 to be appropriate to address the breach of moral duty to Annmarie.

The Court of Appeal varied Brian's will to provide Dorothy with a bequest of his interest in the property, 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. 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. Costs in the High Court were remitted to that Court for determination in light of this judgment.

Orders