IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2020-419-000210
[2023] NZHC 1637
UNDER the Family Protection Act 1955 IN THE MATTER
of the Estate of David Lawrence Burgess of Te Aroha, Farmer (deceased)
BETWEEN
LINDSAY JOHN ALBERT BURGESS
Plaintiff
AND
DUANGKAMOL SRIJONGAI BURGESS
and JOHN JOSEPH GLEESON as trustees in the Estate of David Lawrence Burgess Defendant
Hearing: 27 February 2023 Appearances:
S Jefferson KC and E Burke for Plaintiff G C Jenkin for Defendant
J W Donald for trustees of D L Burgess Family Trust, Interested Party
Judgment:
29 June 2023
JUDGMENT OF HARVEY J
This judgment was delivered by me on 29 June 2023 at 11.30 am pursuant to r 11.5 of the High Court Rules.
Date: …………………..
(Deputy) Registrar
Solicitors:
Blackwells, AucklandBraun, Bond and Lomas, Hamilton Haigh Lyon, Auckland (E Burke)
Counsel:
Simon Jefferson KC, Auckland Geoffrey Jenkin Barrister, Auckland
BURGESS v BURGESS [2023] NZHC 1637 [29 June 2023]
Introduction
[1] David Lawrence Burgess died on 31 July 2019. He left three children, Kevin David James Burgess, Lindsay John Albert Burgess, and Louise Patricia Mary van der Lee.1 They are the children of the deceased’s marriage to the late Delwyn Patricia Rumney. The deceased’s partner, Duangkamol Srijongai Burgess, known as Noi, has a child, Chalurmpon Intarasorn. He is known as Guy.
[2] The deceased left a will dated 15 June 2017. Kevin, Lindsay, Louise and Guy were left $5,000 each.2 Apart from personal property, the balance of the estate was left to the D L Burgess Family Trust, of which Lindsay and Louise are not beneficiaries. Lindsay now challenges the will under the Family Protection Act 1955 and claims adequate provision was not given to him. He seeks 20 per cent or $500,000 in cash and not in land.
[3] The trustees, Noi and Allen Needham Trustees (2019) Ltd, opposed the claim asserting that Lindsay was given adequate provision through gifts, loans and opportunities during the deceased’s lifetime and through his mother’s estate and has not demonstrated any particular need for maintenance. The notional defendants, Noi and a Mr Gleeson as executors of the estate, abide the decision of the Court. Noi in her personal capacity as a beneficiary also abides the decision, as does Guy.
[4] The issues for decision are first, did David breach his moral duty to Lindsay? Secondly, if he did, what remedy is appropriate?
Background
[5] The will dated 15 June 2017 made a number of distributions. First, all debts owed to the deceased by the trustees of his family trust were forgiven. All personal property, apart from two vehicles left to Kevin,3 are given to Noi to distribute according to what she knew of the deceased’s wishes or in her discretion. As foreshadowed, Kevin, Lindsay, Louise and Guy all received $5,000 each.
1 Due to their sharing of a family name Kevin and Lindsay will be referred to by their first names. To standardise the approach the same will be done…
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- Burgess v Burgess [2023] NZHC 1637
- Case
- [2023] NZHC 1637
- Decision Date
CaseChat Overview and Summary
The Court found that Lindsay had provided significant personal and practical assistance to his father, often at personal sacrifice, and that David's will failed to recognise Lindsay's contributions to the family and the estate. The Court accepted that while Lindsay may not have been in dire financial need during David's lifetime, David would have known that Lindsay had sacrificed building up his own asset base by working at low pay on the farm. The Court also found that the gifts Lindsay received from David during his lifetime did not adequately recognise Lindsay's personal sacrifice and commitment working on the farm. The Court concluded that David breached his moral duty to provide proper maintenance and support for Lindsay.
Regarding the appropriate remedy, the Court found that a 16 per cent share of the estate, or $400,000, whichever was greater, was appropriate in the circumstances of this case. The Court accepted that, taking account of Lindsay's personal circumstances, that percentage should be paid in cash. The Court ordered that provision for Lindsay from the estate be increased to 16 per cent or $400,000, whichever was greater, to be paid in cash.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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