Blumenthal v Stewart - [2015] NZHC 3187

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 Defendant

Judgment:

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…

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 [2015] NZHC 3187
Case: [2015] NZHC 3187
Decision Date: 15 December 2015

CaseChat Overview and Summary

In Blumenthal v Stewart, Paul Blumenthal sought to challenge the validity of his stepfather John Mathieson's will and trust, arguing that he was owed a testamentary provision by virtue of the Family Protection Act 1955 and the Law Reform (Testamentary Promises) Act 1949. The court held that Paul's claims under both Acts failed, as well as his equitable claims against the trust holding John's assets. The court found that Paul was not eligible to make a claim under the Family Protection Act because he did not fall within the statutory definition of "stepchild" and was not being maintained by John at the time of his death. The court also held that Paul's claim under the Law Reform (Testamentary Promises) Act failed because the work and services he performed for John were no more than the kinds of acts that might be expected of a good friend or close family member, and there was no nexus between the work and services and any testamentary representation or promise. The court further held that Paul's claims against the trust holding John's assets failed because none of the four Lankow v Rose elements were satisfied. The court concluded that Paul's personal claims against the estate appeared to fall within the rock of the Family Protection Act and the hard place of the Law Reform (Testamentary Promises) Act, and his claims against the trust simply failed on the facts as found by the court.

Orders