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Blumenthal v Stewart

Blumenthal v Stewart

Case [2017] NZCA 181 15 May 2017

Testamentary Promises

Unjust Enrichment

Contributions

Expectation of an Interest

Succession Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA42/2016
[2017] NZCA 181

BETWEEN	COLIN PAUL BLUMENTHAL Appellant
AND	BRUCE ANTHONY STEWART (AS TRUSTEE OF THE J H MATHIESON TRUST) First Respondent
AND	NEUROLOGICAL FOUNDATION OF NEW ZEALAND Second Respondent

Hearing:	13 March 2017
Court:	French, Simon France and Clifford JJ
Counsel:	P A Morten and S M Ruthven for Appellant J M Morrison for First Respondent S R Morris and G J Angus for Second Respondent
Judgment:	15 May 2017 at 10.00 am

JUDGMENT OF THE COURT

A The appeal is dismissed.
BThe appellant must pay the second respondent costs for a standard appeal on a band A basis and usual disbursements.
CThe appellant must pay the first respondent costs for a standard appeal on a band A basis and usual disbursements, but limited as to preparation to one day.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Introduction

Mr John Mathieson died on 1 February 2014, aged 72. During his lifetime he had established the J H Mathieson Trust (the Trust). The Trust had one principal asset, a rural property on which Mr Mathieson had lived since 2005 until his death. The Trust had two named beneficiaries — Mr Mathieson and the second respondent the Neurological Foundation of New Zealand (the Foundation). Accordingly, consequent upon Mr Mathieson’s death, the Foundation receives the Trust’s assets valued at approximately $453,000. Further, under the terms of Mr Mathieson’s will his personal estate, separately worth around $470,000, was also left to the Foundation.
The first respondent Mr Stewart is the surviving trustee of the Trust and executor and trustee of the will. During Mr Mathieson’s lifetime, Mr Stewart was his lawyer.
Mr Mathieson was an only child, never married and had no children. However, he was in a relationship for 22 years with a Ms Blumenthal. Ms Blumenthal died in 2004.
Ms Blumenthal had three children, including the appellant Mr Paul Blumenthal, from a previous relationship. Mr Blumenthal was in his early twenties when his mother and Mr Mathieson became partners. Over the next 30 years until Mr Mathieson’s death Mr Blumenthal developed a close relationship with Mr Mathieson, witnesses describing it as like that of father and son.
Mr Blumenthal brought several claims in the High Court in relation to Mr Mathieson’s personal estate and the Trust property.[1] First concerning the estate, Mr Blumenthal brought a claim under the Family Protection Act 1955. That was unsuccessful because Mr Blumenthal was unable to bring himself within the circumstances under which a stepchild may make a claim. That matter is not pursued.
[1]Blumenthal v Stewart [2015] NZHC 3187, [2016] NZFLR 647.
Next, Mr Blumenthal made a claim for the whole of Mr Mathieson’s personal estate under the Law Reform (Testamentary Promises) Act 1949 (the Act). Mr Blumenthal said that Mr Mathieson had made unfulfilled promises to leave him the Trust’s rural property as his “inheritance”. Finally, Mr Blumenthal made a claim directly against the Trust, alleging a constructive trust in…

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 Blumenthal v Stewart

Details

AGLC: Blumenthal v Stewart [2017] NZCA 181
Case: [2017] NZCA 181
Decision Date: 15 May 2017 at 10.00 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand dismissed an appeal brought by Colin Paul Blumenthal against Bruce Anthony Stewart and the Neurological Foundation of New Zealand. Blumenthal sought a share of the estate of his deceased partner, John Mathieson, under the Law Reform (Testamentary Promises) Act 1949 and claimed a constructive trust over the Trust's rural property. The Court of Appeal held that the lower court's findings were correct and dismissed the appeal. The Court found that the relationship between Blumenthal and Mathieson was a close one, but the contributions made by Blumenthal did not exceed the benefits he received. The Court also held that the requirements for a constructive trust were not met, as the contributions made by Blumenthal were not sufficient to warrant recognition. The Court ordered Blumenthal to pay the costs of the appeal to both respondents.

Orders