Brown v Brown - [2022] NZCA 476

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA333/2021
[2022] NZCA 476

BETWEEN	BELINDA BROWN Appellant
AND	NICHOLAS BROWN AND ROBERT NAREV AS EXECUTORS AND TRUSTEES OF THE ESTATE OF RICHARD BROWN First Respondent
AND	NICHOLAS BROWN Second Respondent

Hearing:	28 July 2022
Court:	Miller, Clifford and Dobson JJ
Counsel:	M G Locke for Appellant No appearance for First Respondent A H Waalkens KC and S A Beattie for Second Respondent No appearance for the Executors and Trustees
Judgment:	10 October 2022 at 10.00 am

JUDGMENT OF THE COURT

A The appeal is dismissed.

B Costs are reserved.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

Table of Contents

Introduction [1]
The family circumstances [5]

The testator  [5]
Testator’s children and grandchildren  [10]
The estate and the testamentary provisions  [20]

The claims  [26]
Evidence on preparation of the codicil  [38]
The High Court judgment  [39]
Arguments on appeal  [51]
Applicable principles  [60]
Analysis  [66]
Result  [79]

Introduction

This appeal is brought by one of a number of claimants for provision out of the estate of Richard Brown (the testator), under the provisions of the Family Protection Act 1955 (the Act). The appellant (Belinda) is one of eight grandchildren of the testator.[1] Belinda’s mother, Danielle, was one of two daughters of the testator (the other being Sarah), both of whom claimed for greater provision out of the estate than was provided for them. Sarah’s son (Brodie) who received a gift of $15,000 from the estate also sought further provision.
[1]The High Court anonymised the names of the participants, having regard to the nature of some of the allegations made against the testator. We adopt the same assumed names.
All their claims were unsuccessful.[2] Belinda is the only applicant to have pursued an appeal.
[2]Brown v Brown [2021] NZHC 1045 [Judgment under appeal].
The Court’s jurisdiction to order provision out of a deceased’s estate or on an intestacy is derived from s 4(1) of the Act, which provides as follows:
(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.
There was affidavit evidence before the High Court. None of the deponents were called for cross-examination. Most of Gordon J’s factual analysis is not now in issue. It is accordingly sufficient to take the factual background largely from the thorough analysis in the judgment under appeal.

The family circumstances

The testator

In 1951 the testator and his girlfriend (Delia) married, with family support, at the age…

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 Brown v Brown

Details

AGLC: Brown v Brown [2022] NZCA 476
Case: [2022] NZCA 476
Decision Date: 10 October 2022 at 10.00 am

CaseChat Overview and Summary

Belinda Brown sought to appeal against a High Court decision that dismissed her claim for provision out of the estate of her grandfather, Richard Brown, under the Family Protection Act 1955. Belinda's mother, Danielle, had previously made allegations of abuse against Richard, which were not substantiated. Belinda claimed that her estrangement from Richard was due to her support of her mother's allegations, and that she had no ongoing relationship with him. She sought an award of $625,000 for maintenance and support.

The Court of Appeal found that the longstanding and voluntary estrangement between Belinda and Richard meant that he did not owe her a moral duty to provide for her separately. The Court noted that Richard had provided substantially for Danielle, placing her in a position where she could provide in turn for her own daughters, including Belinda. The Court also found that there was no evidence that Richard was aware of Belinda's need for maintenance and support, and that his decision to provide for other grandchildren did not make the omission in her case "capricious or wholly unjust".

The appeal was dismissed, and costs were reserved. The Court noted that in this Court costs ordinarily follow the result and seldom depart from scale, and that Belinda's means were limited, but that did not warrant a departure from the usual rule. Counsel may seal judgment accordingly if they are in agreement, or submissions may be filed within 14 days of the date of this judgment.

Orders