Bones v Wright

[2013] NZHC 1922

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV 2013-419-000479

[2013] NZHC 1922

IN THE MATTER

of the Family Protection Act 1955

AND IN THE MATTER

of an appeal against a decision of the Family Court at Hamilton

BETWEEN

DEBORAH JANE BONES

Appellant

AND

JANET WRIGHT

Respondent

Hearing:	17 July 2013
Appearances:	D M O'Neill for the Appellant M H Leaf for the Respondent
Judgment:	1 August 2013

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 1 August 2013 at 2.30 pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

BONES v WRIGHT [2013] NZHC 1922 [1 August 2013]

Introduction

[1] The appellant, Mrs  Bones,  seeks  to  appeal  an  oral  judgment  given  by Judge N D Cocurullo in the Family Court at Hamilton on 25 February 2013.

[2]     Mrs Bones is the daughter of the respondent, Mrs Wright.  The proceedings in the Family Court concerned the estate of the late Mrs Constance Sylvia Simpkins (Mrs Simpkins). She died on 27 March 2010, aged 92 years. She was Mrs Wright’s mother and Mrs Bones’ grandmother. Mrs Wright brought proceedings against the estate under the  Law  Reform Testamentary Promises Act 1949 and  the Family Protection Act 1955. Judge Cocurullo dismissed the claim under the Law Reform Testamentary Promises Act. He granted Mrs Wright’s request for further provision from the estate under the Family Protection Act. Mrs Bones now seeks to appeal Judge Cocurullo’s decision. Mrs Wright has not challenged the Judge’s dismissal of the claim under the Law Reform Testamentary Promises Act.

[3]      This appeal raises the following issues:

(a)Should leave be granted to Mrs Bones to appeal out of time?;

(b)Did Judge Cocurullo err in finding that there was a breach of the moral duty owed to Mrs Wright by Mrs Simpkins?;

(c)If there was a breach of moral duty, did Judge Cocurullo err in the orders he made making further provision for Mrs Wright?

Factual Background

[4]  Mrs Simpkins was born in the United Kingdom in 1917.  She was raised in that country, and in August 1943, she married Charles Simpkins. Mrs Wright was the couple’s only child. She was born in the United Kingdom in 1945. She met Ray Wright in about 1959, and they married in 1966. They remain together.

[5] Mr and Mrs Wright have two children, Mrs Bones who was born in the United  Kingdom  in  1966,  and  Gary  Wright,  who  was  born,  also   in   the United Kingdom, in 1969.

[6]    In 1987, Mr and Mrs Wright and their children immigrated to New Zealand. At the time, Mrs Wright was 42 years’ old and Mrs Bones was 21 years’ old.

[7] In 1990, Mr and Mrs Simpkins followed the Wright family to New Zealand. Mrs Simpkins was aged 72 years at the time. Initially, the Simpkins stayed with the Wrights, who were then living in Raglan. Subsequently, they bought their own property in Raglan.

[8]   In 1991, Mrs Wright and her husband purchased a store in Raglan.  The late Mr and Mrs Simpkins provided $40,000 to assist in the purchase. The store was subsequently sold in about August 2000.

[9]   Mr Simpkins died in August 2001.  He left his estate to his wife.  The bulk of his estate comprised his  share in  the  Raglan  property.  That  share  passed  into Mrs Simpkins’ name by survivorship.

[10] Throughout the 1990s, and up until 2002, Mr and Mrs Wright were the primary “go to” people for Mr and Mrs Simpkins. After Mr Simpkins died in August 2001, Mrs Simpkins executed an enduring power of  attorney in her daughter’s favour. However, shortly thereafter, Mrs Wright and her husband left Raglan and went to reside in Palmerston North. They wanted to be closer to their son, Gary, and he had gone to live in that city. They resided in Palmerston North from 2002 through to 2005. They then followed Gary to Tauranga, and they have continued to reside in Tauranga since that date. Up until 2007, the Wrights remained in contact with Mrs Simpkins and they visited her reasonably regularly.

[11] Mrs Bones left Raglan for Hamilton in about 1991. She stayed in regular contact with her grandmother however. She was married in 1993, and she had one child from that relationship.  The marriage came to an end in 1999.  Mrs Bones has

subsequently remarried. She and her husband have two children, and they reside in Hamilton.

[12] Gradually, Mrs Simpkins’ health declined. She fell, broke her hip and was hospitalised. In 2007, she fell again, broke her shoulder, and was again hospitalised. Further, the relationship between Mrs Simpkins and Mrs Wright slowly deteriorated, and Mrs Bones, along with others, became increasingly involved in Mrs Simpkins’ care, particularly from 2002 onwards. Mrs Simpkins appointed Mrs Bones as her attorney in 2007. Although not without some difficulty, Mrs Simpkins remained living in her property in Raglan until 2008. Mrs Bones then arranged for her to go into residential care.

[13] Over the years, Mrs Wright and her mother grew further apart. There were a number of specific  incidents  which  seem  to  have  caused  difficulties.  Mr  and Mrs Wright did not visit Mrs Simpkins from 2007 onwards. They did not attend Mrs Simpkins’ funeral, although the parties disagree as to who was responsible for that.

[14] It was common ground that Mrs Bones and her mother do not get on well. They had a significant argument in September 1991, and they were estranged until about 1995. They then reconciled and the reconciliation lasted until 2000, when a further falling out occurred. Since then, and except on the odd occasion, they have had little contact. When they have met, acrimony has occurred. Each mistrusts the other.

[15]  At  various  stages   during   her   life,   Mrs Simpkins,   and   before   that, Mrs Simpkins and her husband, were generous  to  both  Mrs Bones  and  to Mrs Wright. In addition to the advance to enable her and her husband to purchase the store in Raglan, Mrs Wright received approximately $42,600 from Mrs Simpkins between 2000 and 2007. Some of this money was by way of reimbursement for expenses incurred by Mrs Wright on Mrs Simpkins’ behalf, but much of it was by way of gift. Mrs Bones also received significant financial assistance from her grandmother, including a car, travel costs, cash sums, and regular monthly assistance over a period of some six to seven years.

Mrs Simpkins’ Wills

[16] Mrs Simpkins made her first will in November 2001,  shortly  after  her husband died. The will was drawn up by a Hamilton solicitor, a Mr Fletcher. He was Mrs Wright’s solicitor. In her will, Mrs Simpkins appointed both Mrs Wright and Mrs Bones as executors, gave $1,000 each to three relatives, gave all her personal chattels to Mrs Bones, gave $10,000 to a friend, and divided the residue of her estate into nine  equal  shares.  Mrs Simpkins  directed  that  Mrs Bones  and Mrs Wright were each to receive four of the nine shares, and that the grandson, Gary Wright, was to  receive  the  remaining  one-ninth  share.  In  the  event  that Mrs Wright predeceased Mrs Simpkins, Gary was to get Mrs Wright’s four-ninth share as well.

[17]    In April 2003, Mrs Simpkins executed a codicil to her will. She cancelled the

$10,000 legacy in favour of the friend, and substituted a legacy of $10,000 to one of her relatives. The solicitor who drew up the codicil recorded at the time that the changes were fully discussed with Mrs Simpkins. He considered that Mrs Simpkins had testamentary capacity.

[18] On 19 October 2007, Mrs Simpkins executed a further will. There were some errors in this will, and these were tidied up in the last will and testament, dated 18 November 2007. The will was drawn up by a different solicitor, a Mr O’Brien. Mrs Simpkins appointed Mrs Bones as the sole executor and trustee of the will. All personal chattels were left to Mrs Bones. There were specific legacies of $10,000 each to a niece and to her daughter. Mrs Simpkins again directed that the residue of the estate was to be then divided into nine equal parts. Four-ninths of the residuary estate was left to Mrs Wright, four-ninths to  Mrs Bones,  and  one-ninth  to Gary Wright. Mrs Simpkins directed that, should Mrs Wright predecease her, then Gary Wright was to take his mother’s four-ninth share in the estate.

[19] Mr O’Brien gave evidence that Mrs Simpkins, at the time she gave instructions in relation to the will, was critical of Mrs Wright. He said in evidence that the Family Protection Act was discussed, and that Mrs Simpkins was satisfied with the provision she was making for Mrs Wright.

[20]    This will was admitted to probate.

[21]    As at the date of death, the net assets of the estate were estimated to be

$713,595.35. After the two legacies were paid, it follows that the estimated net residue was $693,595.35, and that a one-ninth share would come to $77,066.15. On this basis, Mrs Wright and Mrs Bones were each to receive approximately $308,000. The value of the estate was based on a valuation which had been undertaken of the Raglan property. The property was ultimately sold for $655,000. There is no evidence  as  to  its  net sale  price.  The estate’s  solicitor  has  deposed  that  as  at 5 February  2013, the estate was valued at $698,646.53. After payment of the legacies, the net residue was $678,646.53 — together with accrued interest. A one- ninth share therefore came to $75,405 (approximately). While these figures do not allow for the costs incurred in the litigation, it follows that, but for the costs incurred, both Mrs Wright and Mrs Bones stood to receive approximately $301,000 (together with accrued interest). Gary Wright stood to receive approximately $75,000, again with accrued interest.

Family Court Decision

[22] Judge Cocurullo reviewed the nature of the  claims  made  by Mrs Wright which were before him, and the factual background to the matter. He recorded that Mrs Wright had brought a “needs-based claim”. He noted that Mr and Mrs Wright are retired, that they do not own their own home, and that they have minimal savings. He recorded Mrs Wright’s assertion that she had a greater moral claim to the  estate  than   Mrs Bones.   He   also   recorded   Mrs Bones’  assertions   that Mrs Simpkins knew of the rift between her and her mother, and that Mrs Simpkins was a thoughtful testator who knew that unless she made provision directly for her granddaughter, that Mrs Bones would ultimately inherit nothing, because Mrs Wright would make no provision for her in her will.

[23]  The Judge then went on first to discuss the relevant law, and then to consider its application to the facts before him. He considered that the estate could provide properly for an applicant showing need.

[24] The Judge found that up until 2005/2006, Mrs Wright had the significantly closer relationship, first to her parents, and then to the late Mrs Simpkins. However, he also found that Mrs Bones was the favoured grandchild, and that Mrs Bones put “far more into the grandchild/grandparent relationship” than her brother. He noted that post-2006, the relationship between Mrs Wright and Mrs Simpkins became strained. He found that Mrs Simpkins knew of the falling out between Mrs Wright and her daughter, and that Mrs Bones increasingly supported her grandmother, which served to enhance Mrs Simpkins’ already positive view of Mrs Bones. The Judge formed the clear view that Mrs Bones was very fond of, and loved her grandmother. Nevertheless, he concluded that Mrs Wright’s claim against the estate was greater than Mrs Bones’ claim.

[25] Judge Cocurullo considered that Mrs Simpkins was required to act as a non-loving, but nevertheless wise and just testator. He found that Mrs Simpkins knew of her daughter’s and granddaughter’s falling out, and of the likelihood that Mrs Bones would not inherit from her mother. The Judge considered that this was an issue which Mrs Simpkins gave significant thought to, and that it caused her to directly leave part of her estate to Mrs Bones. The Judge however opined that the fact Mrs Simpkins left a four-ninths entitlement to Mrs Bones was concerning. He considered that it came at the expense of Mrs Simpkins properly considering her responsibility to provide for Mrs Wright. Further, he held that there was no evidence of any inquiry by Mrs Simpkins into Mrs Wright’s circumstances. The Judge considered that Mrs Simpkins failed to give those circumstances careful, proper and thorough consideration, and that she failed to properly consider, as a wise and just testator should have, the claim her daughter had to the estate.

[26] The Judge found that Mrs Bones and her immediate family were in a financially comfortable position. In contrast, he considered that Mrs Wright and her husband’s financial position was dire. He considered that there was “a prioritised need” for Mrs Wright to be able to house herself and to own her own home in her retirement. He concluded that additional monetary provision was required. He took the view that the provision made by Mrs Simpkins for her daughter was inadequate, and that Mrs Wright was in high need of financial support for the longer term. He considered that there was a strong needs-based claim.

[27] The Judge then went on to consider the appropriate remedy.  He observed that it was not the Court’s function to re-write Mrs Simpkins’ last will, and that in remedying the breach he had found to exist, further provision for Mrs Wright needed to be somewhat tempered. He ordered that Mrs Wright was to receive five and three- quarter ninth shares of the residue, and Mrs Bones a two and one-ninth share.  As at 5 February 2013, the share left to Mrs Wright was $433,579.72 plus accrued interest. The share left to Mrs Bones was $169,661.63, again plus interest.  The Judge did not disturb the legacies or Gary Wright’s entitlement in the estate.

Application to Bring Appeal Out of Time

[28]  It is common ground that the appeal should have been filed on or before 25 March 2013. The application to appeal out of time was lodged on 26 April 2013. A notice of opposition was filed on 7 June 2013.

[29] Where the delay in bringing an appeal is short, and it is accompanied by an acceptable excuse for the delay, the Court will not generally deprive an intended appellant of the right of appeal. 1   However, where there is no proper explanation for a delay, it is for an intended appellant to show that the appeal has some merit. In such cases, the onus rests on the prospective appellant to satisfy the Court that, in all the circumstances, the justice of the case requires that he or she be given an opportunity to challenge the judgment that he or she wishes to appeal.2 The Court will normally consider the justice of the case, having regard to the extent of the delay, the reasons for it, any prejudice caused to the respondent by the delay, and the apparent merits of the appeal.3

[30] Here, Mrs Bones has deposed that  she  took  some  time  to  consider Judge Cocurullo’s decision. She noted that pursuant to the decision, costs were reserved, but that counsel subsequently suggested that costs should be apportioned between the estate and her. This apportionment was proposed by her counsel on 19 March 2013.   Mrs Wright objected on 4 April 2013, and proposed a different

1       Palata Investments Ltd v Burt & Sinfield Ltd [1985] 2 All ER 517 (CA).

2       Avery v Number 2 Public Service Appeal Board [1973] 2 NZLR 86 (CA) at 91; Tomasic v Pereira HC Auckland CIV 174/94, 19 October 1994; Cooper v Compton (1987) 2 FRNZ 469 (CA).

3       Gallagher Electronics Ltd v Dongaghys Electronics Ltd (1995) 8 PRNZ 177, 179 (CA).

apportionment. A response to this suggestion was sent on 23 April 2013.  Mrs Bones deposed to her despair at the stance being taken by her mother’s legal advisors. She stated that while she had initially been prepared to accept the decision, and put the matter behind her, the ongoing dispute had plunged her into further anxiety and despair. Ultimately, she came to the conclusion that she should follow through on the initial advice given to her, lodge an appeal, and have all matters resolved, including the issue of costs.

[31] Mrs Wright also filed an affidavit, setting out her view of the dispute over costs. She said that initially, it was agreed that costs would lie where they fell and that it was Mrs Bones’ counsel who sought to apportion costs. She challenged Mrs Bones’ assertion in this regard. She did acknowledge that she had received an interim distribution of $170,000 from the estate.

[32] Ms Leaf, appearing for Mrs Wright, accepted that the delay was not substantial. However, she submitted that the reasons for the delay were essentially that Mrs Bones had changed her mind. She submitted that there was prejudice to Mrs Wright, because notwithstanding the fact that her mother had died some three years earlier, she remains unable to consider the purchase of a house, and she is not in a position to properly assess what she can afford to buy. Further, Ms Leaf submitted that the merits of the appeal were weak.

[33] Counsel were agreed that I should approach the application for leave by determining whether Mrs Bones has satisfied the Court that the justice of the case requires that she be given the opportunity to challenge the Family Court’s decision.

[34] In my view, the joint approach presented by counsel was sensible. Accordingly, I go on to consider the merits of the appeal. If I determine that there are good grounds for the appeal, then I will grant leave. The delay was not lengthy, the reasons for it are understandable, and I do not consider that there has been any great prejudice to Mrs Wright.

The Notice of Appeal

[35]    The notice of appeal asserted that:

(a)Judge Cocurullo erred in finding that there was a breach of moral duty owed by Mrs Simpkins to Mrs Wright;

(b)the Judge erred in rejecting Mrs Wright’s claim because of disentitling behaviour. However, ultimately this ground of appeal was not pursued;

(c)the Judge erred in the orders he made, by:

(i)comparing Mrs Bones’ financial position with Mrs Wright’s financial position;

(ii)increasing Mrs Wright’s share by 20 percent at the expense of Mrs Bones’ share, and by not disturbing the bequest in favour of Gary Wright.

(d)the Judge erred by failing to take into account Mrs Bones’ competing moral claim, given the fact that Mrs Wright is not going to provide for Mrs Bones in her will;

(e)the  effect  of  Judge Cocurullo’s  decision  has   been   to   re-write Mrs Simpkins’ will.

Approach to Appeal

[36] The appeal is brought pursuant to s 15 of the Family Protection Act 1955. It provides that any party to proceedings in which there is a decision made by the Family Court or District Court, making or refusing an order under the Act, may appeal to the High Court against the decision. Rule 15(1A) of the High Court Rules, and ss 74–78 of the District Courts Act 1947, with all necessary modifications, apply.

[37] Section 75 of the District Courts Act 1947 provides that all appeals are by way of rehearing.

[38] Counsel accepted that to the extent that the appeal involves issues of fact, or fact and degree, then the approach discussed by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar.4 This approach can be summarised in the judgment of the Chief Justice, who stated as follows:

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ.29 In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

[39] Counsel were agreed that whether or not there was a breach of moral duty by the late Mrs Simpkins has to be considered by reference to the Austin, Nichols approach. They were also agreed that if I conclude that there was a breach of moral duty, then what remedy should have been granted by the Family Court was an issue involving the exercise of a discretion,5 and that I should only interfere if there was an error of law or principle, or if the Judge took into account an irrelevant consideration, or failed to take account of a relevant consideration, or if the decision was plainly wrong.

[40]     I agree with counsels’ analysis of the appropriate approach to the appeal.

Analysis

[41]  I turn first to consider whether or not there was a breach of moral duty owed by Mrs Simpkins to her daughter, Mrs Wright.

[42] As I have already noted, under the will, Mrs Wright received four-ninths of the residuary estate. I have already detailed the estimated net value of the estate as at the date of death — see [21]. Then, the estimated value of a four-ninth share in the residue was $308,264.68. As at 13 February 2013, a four-ninth share came to

$301,000 (approximately). Counsel advised me that after costs associated with the litigation are deducted, a four-ninth share equates to approximately $280,000.

4       Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

5       Kacem v Bashir [2010] NZSC 112, [2010] NZFLR 884 at [32].

[43] Mr O’Neill, appearing for Mrs Bones, submitted that Mrs Wright has received a large proportion of the estate, that the deceased had been consistent in her wishes in each of the wills she made starting in 2001, that the amount left to Mrs Wright was more than sufficient to meet the moral duty owed to her, and that there has been no breach of the duty owed by Mrs Simpkins as a wise and just testator. He emphasised that the Court should not re-write a will, simply because it may consider that the will is unfair to a family member, and that it is not for the Court to be generous with a testator’s property beyond ordering such provision as is sufficient to repair any breach of moral duty.

[44] Ms Leaf submitted that Mrs Simpkins owed a moral duty to Mrs Wright as her only child, and that Judge Cocurullo correctly found that Mrs Simpkins failed to make adequate provision from her estate for the proper maintenance and support of Mrs Wright. She pointed to the parlous financial position of her client. She argued that there was no error of  law  made  by  Judge Cocurullo,  and  submitted  that Mrs Bones has been unable to point to any specific error in the Judge’s approach.

[45]    Section 4(1) of the Family Protection Act provides as follows:

4        Claims against estate of deceased person for maintenance

(1)If any person (referred to in this Act as the deceased) dies, whether testate or intestate, and in terms of his or her will or as a result of his or her intestacy adequate provision is not available from his or her estate for the proper maintenance and support of the persons by whom or on whose behalf application may be made under this Act, the court may, at its discretion on application so made, order that any provision the court thinks fit be made out of the deceased's estate for all or any of those persons.

…

[46] As has been noted by various commentators, the substance of this provision has not changed since 1900, when the Testators Family Maintenance Act passed into law. However, the court's exercise of the discretion conferred on it has moved significantly.6

6       Nicola Peart (ed) Brookers Family Law — Introduction to the Family Protection Act 1955 (online looseleaf ed, Brookers) at FP Intro.03 and FP 4.01; WM Patterson Law of Family Protection and Testamentary Promises (4th ed, LexisNexis, Wellington, 2013) at chapter 2.

[47] The court's current approach to the assessment of proper maintenance and support is set out in three decisions, all of the Court of Appeal and all made in the context of adult child claims. The decisions are Williams v Aucutt,7 Auckland City Mission  v  Brown,8   and  Henry  v  Henry.9      Further,  the  relevant  principles  have

recently been restated by the Court of Appeal in Fisher v Kirby.10

[48] The basic principles are long established. The following statement  of principle, taken from the decision of the Court of Appeal in Little v Angus, has been consistently followed:11

…The inquiry is as to whether there has been a breach of moral duty judged by the standards of a wise and just testator; and, if so, what is appropriate to remedy that breach. Only to that extent is the will to be disturbed. The size of the estate and any other moral claims on the deceased's bounty are highly relevant. Changing social attitudes must have their influence on the existence and extent of moral duties. Whether there has been a breach of moral duty is customarily tested as at the date of the testator's death; but in deciding how a breach should be remedied regard is had to later events…

[49] It is clear that mere unfairness is not sufficient. It must be shown, in a broad sense, that an applicant has need of maintenance and support. However, an applicant need not be in necessitous circumstances.12 The Privy Council has held that the use of the word “proper” in s 4(1) is of considerable importance, and that it connotes something different from adequate. It observed as follows:13

A small sum may be sufficient for the “adequate” maintenance of a child, for instance, but, having regard to the child’s station in life and fortune of his father, it may be wholly insufficient for his proper maintenance.

Their Lordships went on to comment:14

The amount to be provided is not to be measured solely by the need for maintenance. It would be so if the Court were concerned merely with adequacy. But the Court has to consider what is proper maintenance, and therefore the property left by the testator has to be taken into consideration.

7       Williams v Aucutt [2000] 2 NZLR 479 (CA).

8       Auckland City Mission v Brown [2002] 2 NZLR 650 (CA).

9       Henry v Henry [2007] NZCA 42, [2007] NZFLR 640.

10      Fisher v Kirby [2012] NZCA 310.

11      Little v Angus [1981] 1 NZLR 126 (CA) at 127.

12      Re Leonard [1985] 2 NZLR 88 (CA).

13      Bosch v Perpetual Trustee Co Ltd [1938] AC 463 (PC) at 467.

14      At 478.

[50] It is wrong to focus, first, on the needs of the applicant, and then turn to a consideration of the extent of the estate, and other claims there might be upon the testator/testatrix. These considerations do not admit of separate consideration. They are interrelated:15

What has to be assessed are the merits of the claim, having regard to the applicant’s circumstances as at the date of death of the testator, relations between the testator and the applicant in the past, the extent of the estate, and the strength of other claims.

[51]   These various principles were discussed and approved in Williams v Aucutt. In that case, Richardson P distilled the current test for proper maintenance and support as follows:16

…The test is whether adequate provision has been made for the proper maintenance and support of the claimant. Support is an additional and wider term than maintenance. In using the composite expression, and requiring "proper" maintenance and support, the legislation recognises that a broader approach is required and the authorities referred to establish that moral and ethical considerations are to be taken into account in determining the scope of the duty. Support is used in its wider dictionary sense of "sustaining, providing comfort". A child's path through life is supported not simply by financial provision to meet economic needs and contingencies but also by recognition of belonging to the family and of having been an important part of the overall life of the deceased. Just what provision will constitute proper support in this latter respect is a matter of judgment in all the circumstances of the particular case. It may take the form of lifetime gifts or a bequest of family possessions precious to its members and often part of the family history. And where there is no economic need it may also be met by a legacy of a moderate amount. On the other hand where the estate comprises the accumulation of the family assets and is more than sufficient to meet other needs, provision so small as to leave a justifiable sense of exclusion from participation in the family estate might not amount to proper support for a family member.

[52] In a separate judgment, Blanchard J noted that in earlier decades, an expansive view had been taken of the power of the Court to refashion the will of a deceased. He emphasised that the Court is not authorised to re-write a will merely because it may be perceived as being unfair to a family member, and that a beneficiary is not required to justify the interests given to him or her.  He added that

15      Re Harrison (deceased), Thomson v Harrison [1962] NZLR 6 (CA) at 13.

16      Williams v Aucutt, above n 7, at [52].

it is not for the Court to be generous with a testator’s property beyond ordering such provision as is sufficient to repair any breach of moral duty.17

[53] The Court noted that it is common to differentiate between two different classes of estate. In small estates, the applicant can be competing with other persons who also have a moral claim on the testator. In larger estates, the applicant is complaining not just of the unjust distribution of an inadequate fund among dependants, all of whom have a moral claim upon the testator, but of the failure of the testator to make out of the abundance of his or her resources, a  provision

sufficient for the proper maintenance of the claimant.18   The Court also commented

that it is preferable to repair a breach of moral duty by means of a specific legacy rather than a percentage of the estate that can fluctuate in value, depending on the estate’s value.

[54] Williams v Aucutt was followed by the Court of Appeal in Auckland City Mission v Brown.19 In that case, the applicant was not well off, but nor was she in financial need. The testator did not approve of the applicant’s husband, and he set up a trust fund for her children, so that the applicant would not have to support them financially. The total estate was worth $4.6 million, and the testator left his daughter only $30,000.  The High Court awarded the daughter 35 percent of the estate.  The

Court of Appeal criticised this award, and reduced it to $850,000. He explained the basis for the award as follows:20

…We consider a wise and just testator would have ensured that [the applicant and her family] had the means to acquire a more substantial house for the family debt free and to clear the loan [on the existing house], together with a sum to supplement their business income and provide a reasonably substantial contingency fund…

[55] In Henry v Henry,21 the Court observed that the conservative  approach discussed in the earlier cases relates to the Court’s role in assessing whether the deceased made adequate provision, and if not, what is necessary to remedy the

17      At 68–70.

18 At [40].

19      Above n 8.

20 At [45].

21      Above n 9.

failure. The Court considered that this principle must apply to all claims, including those based on financial need. At [58], the Court said as follows:

…In cases of financial need, the amount necessary to remedy the failure to made adequate provision in the will will be able to be determined with greater precision, and with less room for broad value judgments, than in cases where the need is more of a moral kind. The conservative approach requires that the Judge makes the assessment of what is required on a basis which focuses on what is necessary to make adequate provision, but to do no more than that. Broader questions of desirability of greater awards or the Judge’s views of fairness should not come into play…

[56]    Finally, in Fisher v Kirby, the Court of Appeal noted as follows:22

The more recent decisions of this Court have re-emphasised what has always been understood: that mere unfairness is not sufficient to warrant disturbing a testamentary disposition and that, where a breach of moral duty is established, the award should be no more than is necessary to repair the breach by making adequate provision for the applicant’s proper maintenance and support.

The decisions of this Court from and including Little v Angus are properly viewed as a timely reminder that awards should not be unduly generous. But, in our view, neither should they be unduly niggardly, particularly where the estate is large and it is not necessary to endeavour to satisfy a number of deserving recipients from an inadequate estate. A broad judicial discretion is to be exercised in the particular circumstances of each case having regard to the factors identified in the authorities.

[57] Judge Cocurullo considered many of these cases, and cited a number of the quotes which I have set out above. I have, however, concluded that the Judge erred in the way in which he approached the matter. I note the following:

(a)Judge Cocurullo observed that the fact that Mrs Simpkins left a four- ninth entitlement to Mrs Bones was concerning.23 With respect, this overlooks the fact that it is not for a beneficiary to justify a provision made in his or her favour.24 Rather, it was for Mrs Wright as the applicant to prove that Mrs Simpkins was in breach of the moral duty she owed to her as at the date of death.

22      Fisher v Kirby, above n 10, at [118].

23      J W v D J B [2013] NZFC 1460, at [107].

24      Williams v Aucutt, above n 7, at [68].

(b)The Judge observed on a number of occasions in the judgment that Mrs Bones was in a comfortable financial position, and he noted that she did not assert a need for herself. With respect, this was irrelevant. The  Judge  should  have  been  focussing   on   whether   or   not Mrs Simpkins had breached the moral duty she owed to Mrs Wright, and not on the financial position of Mrs Bones.

(c)The Judge’s comment that there was  a  “prioritised  need”  for Mrs Wright to be able to house herself and to own her own home in her retirement, suggests that the Judge was making a comparison between Mrs Wright’s financial position and Mrs Bones’ financial position.

(d)I have difficulty with the Judge’s conclusion that Mrs Simpkins failed to give her testamentary wishes careful, proper and thorough consideration. It is speculation. It is not consistent with the evidence of the solicitor, Mr O’Brien, which I have summarised above at [19]. Moreover, the Judge found as a fact that Mrs Simpkins was aware of the estrangement between Mrs Wright and Mrs Bones, and that she knew that it was extremely unlikely that Mrs Wright would be making provision for Mrs Bones in her will. The extent of the moral duty owed depends on what a deceased knew at the relevant time, or ought to have known, and what potential future developments the deceased ought reasonably to have foreseen. The rift between Mrs Wright and Mrs Bones was clearly a relevant factor. Mrs Simpkins could not assume that Mrs Wright would make provision for Mrs Bones. While this was noted by the Judge, he does not seem to have taken this factor into consideration in determining the extent of the moral duty owed. Rather, he appears to have concluded that because Mrs Wright was in a parlous financial position, Mrs Simpkins must have failed to give proper and sufficient consideration to her duty to provide for Mrs Wright.

(e)The Judge does not appear to have taken into account the fact that Mrs Wright moved away from Raglan in 2002, that contact between Mrs Wright and her mother diminished over time, and that it ceased altogether in 2007. He does not appear to have taken into account the fact that there was a degree of estrangement between Mrs Simpkins and Mrs Wright, particularly in the later years of Mrs Simpkins’ life.

[58] I am left with the  overwhelming  impression  from  the  judgment,  that Judge Cocurullo has approached the matter as follows:

(a)Is Mrs Bones in a comfortable financial position — answer “yes”;

(b)Is Mrs Wright in a comfortable financial position — answer “no”;

(c)Does Mrs Wright need her own home — answer “yes”;

Therefore, Mrs Wright has a prioritised need for further provision from the estate, and her claim should be met at the expense of Mrs Bones, who can afford it.

[59] In my view, the Judge’s approach was flawed. The Judge  should  have confined his consideration to whether or not Mrs Simpkins breached the moral duty she owed to Mrs Wright.

[60]    I now turn to consider that issue by reference to the facts before the Court.

[61] First, I consider that this was a small estate. There were three prospective claimants, Mrs Wright as the daughter and Mrs Bones and Gary Wright as the grandchildren. All were entitled to make a claim under the Act. In the event, the only person to make a claim was Mrs Wright.

[62] Secondly, I agree with Judge Cocurullo that ordinarily, the duty to make adequate provision for the proper maintenance and support of a child, will take priority over the duty owed to grandchildren. This is because a testator/testatrix, and the Court, can generally presume that a child who receives under a will will make

testamentary provision for his or her own children. In the present case, however, this assumption had no or at best very limited application. Mrs Simpkins was aware of the estrangement between her daughter and her granddaughter. She was obviously fond of her granddaughter, and her granddaughter was close to her and of considerable assistance to her in the later years of her life. If any part of her estate was to pass to her granddaughter, she had to make direct provision for her, because it was extremely unlikely that Mrs Wright was going to do so.

[63] Thirdly, the provenance of Mrs Simpkins’ estate is relevant. It derived as to a half share, from the late Mr Simpkins’ estate. His primary asset was his share in the couple’s house at Raglan. That share passed by transmission to Mrs Simpkins. The late Mr Simpkins’ will provided that if Mrs Simpkins died before him, then all of his assets were to be left to Mrs Wright. To this extent, there is force in Ms Leaf’s submission that Mrs Simpkins was the caretaker of her late husband’s estate.25 It does not, however, follow that Mrs Simpkins was bound to leave that part of her

estate as derived from her husband in accordance with his wishes as expressed in his will. She was entitled to take into account the circumstances as they applied at the time she made  her  last  will  and  testament.  By  that  stage,  the  rift  between Mrs Wright and Mrs Bones was clear. In contrast, Mrs Simpkins’ last will was drawn up in 1982, when there was no rift between mother and daughter.

[64] The Judge found that Mrs Simpkins was aware of the falling out between Mrs Wright and Mrs Bones. Knowledge of that falling out offers a good reason for the provisions Mrs Simpkins made in her will. It is noteworthy that Mrs Simpkins, who must have been aware of the rift at the time of her first will in 2001, did not alter her intentions in regard to her residuary estate in any of her later wills.

[65] Fourthly, Mrs Simpkins and her daughter were estranged, particularly from 2007 onwards. While estrangement per se is no bar to a finding that there has been a breach of moral duty,26 it is not irrelevant. It is a factor to be added to the mix. While the Judge did not find that there was any disentitling conduct by Mrs Wright, there were clearly tensions between Mrs Simpkins and Mrs Wright in the later years.

25      National Heart Foundation of New Zealand v Carroll (2009) 28 FRNZ 268 (HC).

26      Moon v Carlin HC Auckland CIV 2010-404-5486, 23 February 2011 at [28]; and see Crosswell v Jenkins & Hall-Jones [1985] 3 NZFLR 570 at 575 (HC).

In contrast, there was always a bond between Mrs Simpkins and Mrs Bones, which became stronger after 2007.

[66] Fifthly, Mrs Wright’s financial position was clearly relevant. The Judge was correct to find that Mrs Wright was not in a good financial position. Mrs Wright deposed that she and her husband are in receipt of a fortnightly pension, and that they receive approximately $2,100 per month. They have no other regular income. They have not insignificant monthly expenses, comprising in part rental. They share a rental property with their son, Gary, and his wife. They have assets worth approximately $46,000, and debts of approximately $7,000. There was no cross- examination in relation to these assertions.

[67] It does not, however, follow that Mrs Wright is entitled to the five and three- quarter ninths of the residual estate given to her by Judge Cocurullo.

[68] The onus was on Mrs Wright to establish that she did not receive adequate provision for her proper maintenance and support. Mrs Wright received a four- ninths share of the residuary estate under the will. Why was a four-ninths share, equating to approximately $300,000, not adequate provision for Mrs Wright’s proper maintenance and support? There was little or no evidence before the Court in this regard. Mrs Wright did say that she and her husband do not own a house and that it will cost $350,000–$500,000 for a three-bedroom house in the Bay of Plenty area. Judge Cocurullo did not comment directly on this assertion, although it is clear that he did consider Mrs Wright needed a house. This begs the question why Mrs Wright needed a three-bedroom house, given her and her husband’s ages. Would something smaller, and cheaper, not suffice?

[69]    It may be that Mrs Simpkins could have been more generous to Mrs Wright. It might even be argued that the provision for Mrs Wright was unfair. But it is trite law that unfairness per se is not the test. In my judgment, adequate provision for proper maintenance and support, in the context of a small estate of $678,000, where there are competing moral claims, does not necessarily require the provision of sufficient monies to enable the claimant to purchase a standalone three-bedroom house.

[70] Mrs Wright was not ignored by Mrs Simpkins in her will. She received a four-ninth  share of  the  residuary estate  —  in  monetary terms  at  approximately

$300,000. Given the limited size of the estate, given the competing moral claims and given the wider family circumstances, in my judgment, the provision made by Mrs Simpkins in her will for Mrs Wright was adequate provision for Mrs Wright’s proper maintenance and support.

[71] Having reached this conclusion, it is not necessary for me to go on and consider whether Judge Cocurullo erred in the orders he made making further provision for Mrs Wright, and I decline to do so.

Conclusion

[72]    For the reasons which I have set out above:

(a)The application for leave to appeal out of time is allowed;

(b)The appeal is allowed, and the judgment of Judge Cocurullo given in the Family Court is set aside.

Costs

[73] I suggested to counsel at the conclusion of the hearing that it may be appropriate for costs to lie where they fall. Neither counsel agreed with that view, and both indicated that they would seek costs on behalf of their respective clients.

[74] As the successful party, Mrs Bones is entitled to costs, and her reasonable disbursements.

[75]    I direct as follows:

(a)Any memorandum in support of a costs application by Mrs Bones is to be filed and served within 10 working days of the date of release of this judgment.

(b)Any memorandum in response from Mrs Wright is to be filed and served within a further 10 working days.

(c)Memoranda are not to exceed 10 pages in length.

[76]     I will then deal with the issue of costs on the papers, unless I require the assistance of counsel.

Wylie J