Brand v Douglas - [2022] NZHC 1769

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-180

[2022] NZHC 1769

BETWEEN
STEVEN PAUL BRAND

Plaintiff

AND

WINIFRED HELEN DOUGLAS and JOYCE INGRID SHARPLIN

Defendant

Hearing: 4 July 2022

Appearances:

M J Borcoski for Plaintiff S M Bevin for Defendant

Judgment:

22 July 2022

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 22 July 2022 at 11 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

BRAND v DOUGLAS [2022] NZHC 1769 [22 July 2022]

[1] Mr Clement Brand passed away on 17 July 2020. He had seven children, and a modest estate of little more than $120,000. In his will, he left his estate to be divided equally among his natural grandchildren living at his death and who attained 20 years of age.

[2] His son Steven, who has no children who will benefit from the will, claims against the estate under the Family Protection Act 1955 (FPA), saying the will failed to provide proper recognition of him as a child of the deceased.

The Family Protection Act 1955

[3] Section 4(1) of the FPA provides the Court with a discretionary power to make provision for a plaintiff from a deceased’s estate if the Court is satisfied that adequate provision has not been made from the estate for the plaintiff’s “proper maintenance and support”. There is no dispute that Steven, as a child of the deceased, has standing to bring such a claim.1

[4] The parties also agree that the basic principles applying to s 4(1) of the FPA are set out authoritatively in Little v Angus, where it was said:2

The inquiry is as to whether there has been a breach of moral duty judged by the standards of a wise and just testator or testatrix; 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.

[5] While the expression “moral duty” does not appear in s 4(1) of the FPA, it is held to be implicit in the inquiry that the section requires.3 In Williams v Aucutt, the Court of Appeal said:4

1      Family Protection Act 1955, s 3(1)(b).
2      Little v Angus [1981] 1 NZLR 126 (CA) at 127.
3      Williams v Aucutt [2000] 2 NZLR 479 (CA) at [38].
4 At [52].

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”. … “Support” is used in its wider dictionary sense 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 Brand v Douglas

Details

AGLC: Brand v Douglas [2022] NZHC 1769
Case: [2022] NZHC 1769
Decision Date: 22 July 2022

CaseChat Overview and Summary

The case of Brand v Douglas concerns a claim by Steven Paul Brand against the estate of his late father, Clement Brand, under the Family Protection Act 1955 (FPA). Steven, one of Clement’s seven children, argues that the will did not adequately provide for his proper maintenance and support. The will, executed in 2006, left the residue of the estate to be divided equally among Clement’s grandchildren who attained 20 years of age. Steven, having no children, did not receive any provision under the will.

The central legal issues in the case revolve around whether Clement breached his moral duty to Steven by not making adequate provision for him in his will, and if so, what amount, if any, is required to remedy this breach. The court had to consider the moral obligations owed to Steven, taking into account factors such as Steven’s relationship with Clement, his financial contributions to Clement, and the size of the estate. The court also had to determine whether there were other competing moral claims, such as those from the grandchildren.

In its judgment, the court found that Clement did breach his moral duty to Steven by failing to recognize him in the will, despite Steven’s significant contributions to Clement's welfare and the value of his estate. The court accepted that Steven's relationship with Clement, while strained at times, included periods of reconciliation and mutual support, particularly in the years leading up to Clement's move to a retirement villa. The court also noted that there were no superior moral claims from other family members that would justify the omission of Steven in the will.

The court concluded that an award of $6,000 from the estate would adequately remedy the breach of moral duty to Steven. This amount was chosen to recognize the father-son relationship without significantly impacting the distribution to the grandchildren, respecting Clement's intent to assist the younger generation. The court also considered Steven's financial independence and the modest nature of the estate.

Orders