IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2014-454-90 [2015] NZHC 3187
UNDER The Family Protection Act 1955 and the
Law Reform (Testamentary Promises) Act 1949
IN THE MATTER OF
the Estate of JOHN HAWTHORN MATHIESON late of Palmerston North (Deceased)
UNDER
Part 18, Rule 18.1 High Court Rules
IN THE MATTER OF
the J H MATHIESON TRUST
BETWEEN
COLIN PAUL BLUMENTHAL Plaintiff
AND
BRUCE ANTHONY STEWART First Defendant
NEUROLOGICAL FOUNDATION OF NEW ZEALAND
Second Defendant
Hearing: 13 - 15 July, 4 and 13 August 2015 Counsel:
H A Cull QC and P A Morten for Plaintiff
J M Morrison for First Defendant
S R Morris for Second DefendantJudgment:
15 December 2015
RESERVED JUDGMENT OF ELLIS J
I direct that the delivery time of this judgment is
10 am on the 15th day of December 2015
BLUMENTHAL v STEWART [2015] NZHC 3187 [15 December 2015]
[1] For some 22 years John Hawthorn Mathieson (John) lived in a de facto relationship with Shirley Dawn Blumenthal (Dawn). John had never been married and had no children of his own. Dawn had four children from her previous marriage, including the plaintiff, Paul Blumenthal (Paul). Paul was a young adult when his mother’s relationship with John began and he is now in his 50s. The relationship was ended by Dawn’s death, in 2004.
[2] John died on 1 February 2014. His will effectively left all his property, valued at around $468,000, to charity, the Neurological Foundation of New Zealand (the Foundation). The Foundation is also the only beneficiary of the J H Mathieson Trust (the Trust), which holds net assets valued at around $453,000.
[3] In these proceedings Paul brings claims against John’s estate under the Family Protection Act 1955 (the FPA) and the Law Reform (Testamentary Promises) Act 1949 (the TPA) and in equity against the Trust. I record that no similar claims have been brought by Paul’s siblings. It is not, however, in dispute that Paul’s relationship with John was closer and deeper than theirs.
[4] It is useful to begin by setting out the facts and evidence in a little more detail.
THE FACTUAL MATRIX
[5] Paul first became friends with John in 1978. John was a panel beater. Paul and Dawn were involved in running a family pest control business.
[6] John executed his last will in 1981. His de facto relationship with Dawn began the following year. His solicitor at that time (and until his death) was Bruce Stewart, the first defendant. Mr Stewart drafted the will and is its sole executor and trustee. Under the will, the beneficiaries are John’s father and his aunt, with a gift over to the Foundation. John’s aunt and father both died before he did.
[7] As I understand it, in the late 1980s John was no longer able to work as a panel beater and was unemployed for two years or so. In about 1990 he was given a job in the Blumenthal family’s pest control business. Paul says that…
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