Legal Research
Cases
Bean v Bean

Bean v Bean

Case [2019] NZHC 20 22 January 2019

Adequate Provision

Proper Maintenance and Support

Moral Duty

Family Protection Act

Family Law

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2017-463-97

[2019] NZHC 20

BETWEEN
WARREN ONSLOW BEAN

Appellant

AND

CHERIE MARION BEAN

First Respondent

CHERIE MARION BEAN WARREN ONSLOW BEAN WILLIAM JOHN LYNCH

Second Respondents

Hearing: 5 December 2018

Counsel:

J Hosking for appellant S Scott for respondents

Judgment:

22 January 2019

JUDGMENT OF KATZ J

This judgment was delivered by me on 22 January 2019 at 4.30 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: The Law Shop, Rotorua
Chris Rejthar & Associates, Tauranga

Counsel: J Hosking, Barrister, Rotorua
S Scott, Barrister, Tauranga

BEAN v BEAN [2019] NZHC 20 [22 January 2019]

Introduction

[1] Cherie Bean seeks further provision from the estate of her late mother, Marion Bean. She has filed proceedings in the Family Court under the Family Protection Act 1955.

[2] Cherie’s brother, Warren Bean, applied to strike out the proceeding on the ground that it discloses no reasonable basis for the application.1 Judge Brown declined the strike-out application.2 Warren now appeals that decision.

Background

[3] In 1999 Marion and her husband Fredrick Bean (“Fred”) purchased a lifestyle property near Rotorua and moved there (“the home”). Cherie and her partner Richard built a small cottage on the property in 1999, at Marion and Fred’s invitation, and have lived there since.

[4] Over the years there was talk of acquiring the 10-acre block next door. When it came on the market in 2010, Marion, Fred, Cherie and Richard purchased it. A fairly comprehensive co-ownership deed was drawn up by solicitors. It recorded that the four owners owned the property as tenants in common in equal shares (namely one quarter each). There is no suggestion in that document that Marion or Fred would leave Cherie their respective interests in the 10-acre block on their deaths. However, in her affidavit in support of her claim, Cherie deposes that:

Despite the wording of the document entered into, I had always understood from discussions with my parents that they would leave my partner and I the 10 acre block.

[5] They did not. On 1 September 2015, Marion and Fred made new wills, which largely mirrored each other. Fred was gravely ill at the time, and died nine days later. In his will he made various specific bequests and also forgave all monies owed to him by Cherie as at the date of his death (there was apparently a joint loan from Marion

1 Family Court Rules 2002, r 193(1)(a).
2 Bean v Bean [2018] NZFC 5920.

and Fred to Cherie, in the sum of approximately $150,000). Fred gave Marion a life interest in his share of the home. He directed that after her death:

(a)Cherie was to be given the option to purchase the home, with the purchase price to be determined by an independent valuer;

(b)his son from a previous relationship was to be given a specific bequest of $50,000; and

(c)the balance of the sale proceeds of…

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 Bean v Bean

Details

AGLC: Bean v Bean [2019] NZHC 20
Case: [2019] NZHC 20
Decision Date: 22 January 2019

CaseChat Overview and Summary

In the case of Bean v Bean, Cherie Bean sought further provision from the estate of her late mother, Marion Bean, under the Family Protection Act 1955. Warren Bean, Cherie's brother, appealed against the Family Court's decision to decline his application to strike out Cherie's claim. The central legal issue was whether Cherie's application disclosed a reasonable basis for the Family Protection Act claim. The court considered the principles for striking out proceedings and assessed whether Cherie's claim was clearly untenable.

The court found that Cherie's claim was weak but not clearly untenable. Cherie argued that Marion intended to leave her the 10-acre block but failed to amend her will in time. However, the court noted that the Family Protection Act does not allow for claims based on the testator's intentions but rather on a breach of moral duty to provide proper maintenance and support. Furthermore, Cherie did not provide evidence of financial need, and her claim seemed to focus on the perceived inadequacy of the will rather than actual need. The court concluded that although the claim was weak, it was not clearly untenable, and thus, the appeal was allowed. The Family Court's decision to deny the strike-out application was set aside, and Cherie's application was struck out. If costs could not be agreed upon, the parties were required to file memoranda on the issue of costs by specified dates.

Orders