Legal Research
Cases
Brown v Brown

Brown v Brown

Case [2021] NZHC 1045 11 May 2021

Contract Formation

Unconscionable Conduct

Issue Estoppel

Specific Performance

Admissibility of Evidence

Civil Penalty

Family Law

Succession Law

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-948

[2021] NZHC 1045

UNDER Part 18 High Court Rules, The Family Protection Act 1955 and the Law Reform (Testamentary Promises) Act 1949

IN THE MATTER

of the estate of RICHARD BROWN

BETWEEN

DANIELLE BROWN

Plaintiff

AND

NICHOLAS BROWN AND

ROBERT NAREV AS EXECUTORS AND TRUSTEES OF THE ESTATE OF RICHARD BROWN

Defendants

…/cont

Hearing: 15-16 March 2021

Appearances:

S R Jefferson QC and J L Thomas for Plaintiff in CIV-2019-404- 948

M G Locke for Plaintiff in CIV-2019-404-1212 P McKendrick for the Defendants

A H Waalkens QC and S A Beattie for Nicholas, Interested Party G Bogiatto for Sarah, Interested Party

H Fulton for Brodie, Interested Party

Judgment:

11 May 2021

JUDGMENT OF GORDON J

This judgment was delivered by me on 11 May 2021 at 3.30 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

BROWN v BROWN [2021] NZHC 1045 [11 May 2021]

CIV-2019-404-1212

UNDERPart 18 of High Court rules, the Family Protection Act 11955

IN THE MATTER of the Estate of RICHARD BROWN BETWEEN BELINDA BROWN
Plaintiff

AND NICHOLAS BROWN AND
ROBERT NAREV AS EXECUTORS AND TRUSTEES OF THE ESTATE OF RICHARD BROWN
Defendants

Solicitors: Schnauer and Co Ltd, Auckland
Davenports West, Auckland Glaister Ennor, Auckland Denham Branwell, Manukau G Bogiatto, Auckland
R Wood, Auckland Counsel: S R Jefferson QC, Auckland
A H Waalkens QC, Auckland
H Fulton, Auckland

TABLE OF CONTENTS

Background [6]
Size of estate [22]

Terms of will and codicil [25]

The claims and opposition  [28]
Danielle  [28]
Sarah  [35]
Belinda  [44]
Brodie  [53]

The issues [64]

Family Protection Act 1955 [65]

Unfairness/disparity of benefits  [75]
Inter vivos contributions  [80]
Allegation of abuse and alleged resulting estrangement  [85]
Percentage-based approach?  [91]
Grandchildren  [92]
Estoppel  [98]

Discussion [101]

Danielle [101]

Sarah [179]
Belinda [204]

Brodie [217]

Costs [224]

[1] Richard Brown1 died on 12 August 2018.

[2] This is a claim under s 4 of the Family Protection Act 1955 (the Act) by two of Richard’s three children, Danielle and Sarah, for further provision from their father’s estate; by one of Danielle’s three daughters, Belinda, for provision from her grandfather’s estate;2 and by Sarah’s son Brodie for further provision from his grandfather’s estate.

[3] The applications are opposed by Richard’s third child and primary beneficiary, Nicholas (in his personal capacity). Nicholas is also an executor of the estate along with solicitor, Robert Narev. The executors abide the decision of the Court.

[4] Danielle discontinued another claim made under the Law Reform (Testamentary Promises) Act 1949 prior to the hearing.

[5] Evidence was by way of affidavits. There was no cross-examination.

Background

[6] In 1951, Richard’s then girlfriend, Delia, became pregnant. The two of them were 17 years’ old at the time. There was family pressure on them to get married. Their daughter, Danielle, was born in 1952. She is now aged 68. Their second child, Nicholas, was born in 19533 followed by…

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 [2021] NZHC 1045
Case: [2021] NZHC 1045
Decision Date: 11 May 2021

CaseChat Overview and Summary

Danielle, Sarah, Belinda, and Brodie are the children and grandchildren of Richard who have made claims for further provision from Richard's estate under the Family Protection Act 1955. The claims were opposed by Nicholas, Richard's third child and primary beneficiary. The court had to determine whether Richard breached his moral duty to provide for the claimants and, if so, to what extent. The court found that Richard did not breach his moral duty to any of the claimants. Danielle's allegations of abuse were not proven, and her estrangement from Richard was due to her own actions as an adult. Sarah had been provided for by Richard during his lifetime, and there was no breach of moral duty in the provision made for her in the will. Belinda and Brodie's claims were also dismissed, as the primary obligation to provide for them rested with their mothers, Danielle and Sarah, respectively. The court found no breach of moral duty in the provision made for Brodie, given his long estrangement from Richard. Costs were reserved for later determination.

Orders