Burgess v Burgess
[2023] NZHC 1637
•29 June 2023
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 for all involved.
2 Probate was granted 11 September 2019.
3 A 1980 Ford F1 Utility and a 1951 Ford.
[6] After funeral and testamentary expenses, the residuary is held in the D L Burgess Family Trust. Lindsay and Louise are not a beneficiaries of the trust.
[7] The deceased recorded at cl 11 of his will that lesser provision had been made for Lindsay and Louise because “adequate provision for them [was made] during my lifetime and they received substantial provision” from their mother’s estate.
[8] The D L Burgess Family Trust’s final beneficiaries are the grandchildren of the deceased, or children of any grandchildren should their parents’ death predate the date of distribution. The discretionary beneficiaries are: the final beneficiaries; Kevin; Guy; any grandchildren of the deceased; any spouse or de facto partner of the deceased; the settlor; and any trust or settlement of a discretionary beneficiary under which all beneficiaries are entitles for whom the deceased holds a natural love and affection.
[9] The estate is described as “moderate” with a net value of approximately $2.4 million. This includes two properties valued at $185,000 and $430,000, funds held in bank accounts, income tax receivable, farmlands shares, farm vehicles and machinery, vintage cars and tractors, livestock and creditors to the estate. Mr Jenkin provided a brief overview and update of the estate, highlighting the current financial position:
(a) Estate assets as of 30 November 2021 $4,278,289.00 (b) Increase in value of reality as of 22 July 2022
$115,000.00
(c) Stock value adjustments as of 31 May 2022
($99,914.00)
(d) Estate debt as of 30 November 2021
($1,800,019.00)
(e) Net estate value on 21 February 2023:
$2,493,356.00
Procedural history
[10] The claim was filed on 25 August 2020 and an order for directions as to service was issued on 11 September 2020. Further directions were issued by Muir J on 1 December 2020. The defendants’ counsel filed a statement of defence on 18 December
2020 in accordance with the Court’s earlier directions. Another minute was then issued on 16 February 2021 setting out further pretrial directions. Peters J then issued directions by consent on 9 March 2021. This was followed by Davison J adjourning a pretrial conference by consent on 29 March 2021. Wylie J then issued a minute on 28 April 2021 amending the directions of Muir J as to filing dates.
[11] After the proceedings had opened, I raised with counsel the prospect of settlement discussions. Both counsel agreed and the hearing was adjourned for some 90 minutes to enable those discussions to occur. Unfortunately, those discussions did not result in a settlement and so the case continued after the morning adjournment.
Plaintiff’s submissions
[12] Mr Jefferson KC submitted that the issue for consideration is whether there has been a breach of moral duty of the part of David at the date of his death towards Lindsay. Counsel contended that whether the claimant has made a contribution to the deceased or the deceased’s estate is relevant to the assessment of breach of moral duty.4 Mr Jefferson argued that the parent-child relationship is primary.5
[13] Counsel submitted that the gift of $5,000 from the estate was inadequate provision of support and maintenance. It amounted to 0.2 per cent which he described as “risible”. He also highlighted that Lindsay is not a beneficiary of the trust, which stands to receive the residue of the estate, a trustee, nor does he have any powers in relation to the trust. It was suggested that the bulk of the deceased’s wealth is settled on the trust.
[14] Mr Jefferson referred to clause 11 of the will which expressly recognised that lesser provision was made for Louise and Lindsay in light of “adequate provision [for Lindsay and Louise during the deceased’s lifetime and the] …substantial provision from my former wife’s estate”. Counsel contended that Lindsay did not receive adequate provision in his lifetime, beyond any compensation for work carried out on David’s farm.
4 Referring to Brosnahan v Meo [2021] NZHC 79; Fisher v Kirby [2012] NZCA 310, [2013] NZFLR 463 and Goodman v Windeyer (1980) 31 ALR 23 (HCA).
5 Referring to Flathaug v Weaver [2003] NZFLR 730 (CA).
[15] In addition, Mr Jefferson argued that Lindsay did not in fact receive what he was entitled to under his mother’s will, due to entering into a deed of family arrangement that was less beneficial to him than the terms of his mother’s will. This involved a complex settlement with his siblings and father. Counsel therefore contended that the deceased was under a significant misapprehension as to the extent of the provision made for Lindsay from his former wife’s estate. Equally importantly, in any event, such provision does not displace the deceased’s moral duty to Lindsay. Moreover, for completeness, Mr Jefferson argued that Lindsay’s evidence was that a significant proportion of the money he eventually received had to be applied to his marriage breakup with his former wife.
[16] Counsel submitted that the inter vivos provision was modest, consisting of various transfers of motor vehicles ostensibly in lieu of payment and in exchange for Lindsay’s work on the farm; three short term loans; and the provision of some free accommodation associated with his employment on the farm. Although Lindsay through his company received sharemilking contract income with the deceased, those amounts were subject to various deductions which likely included electricity costs, vehicle maintenance and operations, insurance, rubberware and relief milker costs.
[17] Mr Jefferson also contended that Lindsay made significant personal sacrifices to support his parent, as exemplified by the work carried out on the deceased’s farm properties. He then returned to provide farm operation support when his parents were unwell. Lindsay’s evidence is that the majority of this was undertaken for years at less than the minimum wage and/or despite gruelling working hours and difficult conditions, culminating in a considerable toll to Lindsay’s physical and mental health. These conditions did not dissipate, in counsel’s submission, simply because of the sharemilking contract entered into by Lindsay’s company with his father.
[18] Further, Mr Jefferson argued that Lindsay’s agreement to enter into the deed of family arrangement is another example of contribution towards the deceased.
[19] Counsel also referred to Lindsay working up to eighteen hours a day at Noi’s request after David’s death for no compensation in wages or salary, although he was living in the farm house.
[20] Mr Jefferson submitted that, as foreshadowed, the deceased’s support provided to Lindsay in this lifetime was insufficient to justify the risible provision in the will of
0.2 per cent. It was also important to bear in mind, according to counsel that gifts of motor vehicles were often in lieu of payment due to Lindsay for farm work. Advanced funds were always paid back promptly. Added to that, any inherent value in the offer for Lindsay to be farm manager was undermined because he had already assumed many of a manager’s responsibilities. In this context counsel highlighted evidence that the deceased was not committed to upholding necessary health and safety standards to which Lindsay would be obliged to adhere and the pay associated with the manager role was fixed despite the expectation that Lindsay would work any additional hours unilaterally stipulated by his father.
[21] Overall, Mr Jefferson submitted that any contributions by the deceased were vastly outweighed by the loyalty and consistent efforts of Lindsay in supporting the operation of the farm properties and in doing so, his family, for which the deceased arguably received the greatest benefit.
[22] Mr Jefferson then referred to several “promises” made to Lindsay over the years to help him “get ahead” and secure a stake in the farms. Counsel did not suggest these offers constituted a testamentary promise for which relief could be granted under the Law Reform (Testamentary Promises) Act 1949 but contended they are, however, contextually relevant to this claim.
[23] Regarding Lindsay’s need for maintenance, Mr Jefferson pointed to his health issues with his hip from a young age which were exacerbated by a “bungled” operation in 2012. His everyday mobility is limited and since May 2020, he is in receipt of a sickness benefit from Work and Income which is his sole source of income. A wise and just testator would have been expected to bring into account, in counsel’s submission.
[24] Lindsay’s evidence is that his assets are of modest value and that previously owned capital has been used to pay off significant debts incurred as a sharemilker working for the deceased and those left at the end of his marriage that his wife had incurred during their relationship. Lindsay’s assets are as follows:
(a)A residential property, the “gold digger’s cottage” at 108 Waiorongomai Loop Road, Te Aroha with a CV of $380,000.
(b)A property on Waiorongomai Loop Road with a shed on the same;
(c)Miscellaneous motor vehicles with a total value of approximately $18,000;
(d)Cash savings and investments, now with a nil value;
(e)Domestic chattels worth approximately $15,000;
(f)A mortgage facility with Westpac New Zealand Limited for approximately
$80,000 which has been drawn down to the extent of $60,000 at present.
[25] Mr Jefferson argued Lindsay assumed this financial burden with an expectation of future financial compensation from the deceased. With respect to the considerable periods of time during which Lindsay worked for his father for minimal or no wages, not only was Lindsay denied compensation and reimbursement, but he was also inevitably prevented from obtaining paid employment elsewhere and generating personal financial wealth.
[26] Counsel submitted that the distribution does not recognise Lindsay as family. The size of the estate in proportion to the distribution indicates that result. He has no other recourse to maintenance, not being a beneficiary of the trust. Further Mr Jefferson contended that despite the sometimes strained relationship, there is no suggestion of disentitling conduct on the part of Lindsay. In any case, where there has been estrangement between applicant and deceased, this does not necessarily undermine the strength of the applicant’s claim.6
[27] Finally, counsel confirmed that there were no competing moral claims against the deceased’s estate have been filed. Accordingly, Mr Jefferson argued that an award substantially greater than the amount bequeathed to Lindsay in the deceased’s will is due. He submitted that approximately 20 per cent or $500,000 was appropriate.
6 Crosswell v Jenkins (1985) 3 NZFLR 570 (HC) at 575.
Trustee’s submissions
[28] Mr Donald submitted that Lindsay received substantial provision from his mother’s estate. He also received inter vivos gifts and support from the deceased during his lifetime. Equally importantly, according to counsel, Lindsay has not demonstrated that he has any particular need of maintenance. In addition, counsel contended that the gift from the estate of $5,000 recognised Lindsay’s role in the deceased’s life and reflected how that diminished during his father’s later years.
[29] Further, Mr Donald highlighted that regarding the late Mrs Burgess’ will, the children as a whole received a distribution which was $152,830 more valuable than that which they would have otherwise received by receiving shares deriving in value from Anderson Farms instead of their interests in the estate. Lindsay was able to sell his one-third portion of the shares to his sister Louise and her husband for $650,000 in 2014, three years before the deceased’s will was written.
[30] Counsel argued that the deceased also gave Lindsay assistance throughout his life. Lindsay’s cottage was purchased in 1984 with some assistance from his father, although the extent of that assistance is disputed. Two valuable classic cars and two tractors were also gifted over the years. One of the cars was valued at $40,000 and another at between $10,000 to $40,000. Mr Donald submitted that, regarding his work for the deceased, Lindsay has not provided evidence of how such remuneration might have been below value, given that evidence provided by the Trustees confirmed that he was renumerated fairly. Lindsay also accepted he received interest free loans.
[31] Counsel referred to Lindsay’s history working on the deceased’s farms. His contribution waned over the years and ceased in 2019. Mr Donald contended that there is a correlation in the previous wills between the provision given and the personal and employment relationship between Lindsay and his father. In particular, counsel referred to the deteriorating relationship due to conflict over Delwyn Burgess’ will, where provision in the deceased’s wills reduced markedly, followed by a will in 2011 after the sharemilking agreement had been entered into and where Lindsay’s position much improved.
[32] Mr Donald argued that the available evidence does not substantiate the plaintiff’s claim that he is in need of maintenance in terms having inadequate economic means to sustain himself. It would not have been unreasonable for the deceased to conclude that the plaintiff was not in need of “maintenance”, that is, merely an adequate level of economic sustenance. The deceased had knowledge of Lindsay’s interest in land and buildings, the 2014 sale of shares for $650,000, the fact he had 15 more years of working life, would be in a debt free position with a freehold home in retirement, and had taken overseas trips regularly.
[33] Given the absence of any economic need on the part of the plaintiff, the Trustees submitted that the deceased’s duty to provide out of his estate is limited to a moderate gift such as to recognise the part played by Lindsay in his father’s life and family. Such a duty is limited by the strained nature of the relationship between father and son. Five thousand dollars is submitted to be sufficient to provide a gift of “support”.
[34] Mr Donald submitted that should the Court find a breach, the remedy should only go to “support” as Lindsay has not established a need for maintenance. Counsel cited a range of cases and contended that George v Blomfield is the most factually similar.7 If there is additional provision for Lindsay, it should be limited to a range of 8–15 per cent of the estate ($207,500–$389,000). Transfer of the property at Wairongomai Road in Te Aroha, valued at $270,000, could accomplish this.
Legal principles
[35] The children of a deceased, per s 4(1) of the Family Protection Act, can apply for the exercise of the Court’s discretionary power to intervene in the terms of the deceased’s will, where adequate “proper maintenance and support” has not been provided by the will:
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 person 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.
7 George v Blomfield [2016] NZHC 3099.
[36] It is well settled that the Court’s enquiry is two-fold: first, to assess whether there has been a breach of moral duty.8 This requires an evaluative exercise judged by the standards of a wise and just testator or testatrix.9 Relevant considerations include the size of the estate and whether there are competing moral claims against the estate. Regard will be had to ethical, moral and contemporary social considerations. It is assessed as of the date of death and the burden of proof to establish the grounds of s 4(1) lies with the applicant. To prevail an applicant must demonstrate a need for maintenance and support.10 Mere unfairness is insufficient.11 However, support may refer to recognition of belonging to the family and of having been an important part of the overall life of the deceased.12 Such support may take the form of lifetime gifts or a bequest of family possessions.13
[37] Secondly, if the Court is satisfied the applicant has not been provided with adequate proper maintenance and support, it may, at its discretion order any provision it thinks fit be made out of the deceased’s estate. The Court must consider what the appropriate remedy for such a breach is, if established. It will only disturb the will to the minimum extent necessary to remedy the breach.14 Remedy considerations can also have regard to events following death.
[38] It is also trite law that s 4 of the Family Protection Act is not intended to empower the Court to rewrite a will to correct any perceived unfairness or to achieve parity as between siblings. Testamentary freedom must be respected, except where there has been a failure to make proper provision for the maintenance and support of those entitled to receive it. In any case, the jurisdiction to amend a will has not altered since Allardice v Allardice where Edwards J highlighted that for a will to be changed, a testator must have been guilty of a manifest breach of moral duty which a just testator owes “towards his wife or towards his children”.15 Where there has been a breach, the Court must make sufficient orders “but no more than sufficient” to repair that breach.
8 Little v Angus [1981] 1 NZLR 126 (CA).
9 Fisher v Kirby, above n 4.
10 Brosnahan v Meo, above n 4.
11 At [40].
12 At [40].
13 At [40].
14 Brown v Brown [2022] NZCA 47; Henry v Henry [2007] NZCA 42, [2007] NZFLR 640; and
Williams v Aucutt [2000] 2 NZLR 479.
15 Allardice v Allardice (1910) NZLR 959 (CA).
[39]In summary, in Vincent v Lewis, Randerson J reiterated the key principles:16
(a)The test is whether, objectively considered, there has been a breach of moral duty by [the testator] judged by the standards of a wise and just [testator].
(b)Moral duty is a composite expression which is not restricted to mere financial need but includes moral and ethical considerations.
(c)Whether there has been such a breach is to be assessed in all the circumstances of the case including changing social attitudes.
(d)The size of the estate and any other moral claims on the deceased’s bounty are relevant considerations.
(e)It is not sufficient merely to show unfairness. It must be shown in a broad sense that the applicant has need of maintenance and support.
(f)Disparity in the treatment of beneficiaries is insufficient to establish a claim.
(g)If a breach of moral duty is established, it is not for the Court to be generous with the testator’s property beyond ordering such provision as is sufficient to repair the breach.
(h)The Court’s power does not extend to rewriting a will because of a perception it is unfair.
(i)Although the relationship of parent and child is important and carries with it a moral obligation reflected in the Family Protection Act, it is nevertheless an obligation largely defined by the relationship which actually exists between parent and child during their joint lives.
Did David breach his moral duty to Lindsay?
[40] I am satisfied that during David’s life, Lindsay provided significant personal and practical assistance to him, often at personal sacrifice. According to the evidence, Lindsay worked on his father’s farm from the age of 14. At 18 he moved to Australia
16 Vincent v Lewis (2006) 25 FRNZ 714 (HC) at [81]; see also AP v Lucas [2021] NZHC 1017 at [36].
and was earning a reasonable living as a crane driver. However, in 1992 his mother became ill. His parents then requested that he return to New Zealand to help out on the farm and assist his mother, which he dutifully did. Lindsay worked on Wardrops Farm from 1992. After his mother died, David insisted on Lindsay working long hours with minimal payment, which he also did. Lindsay further undertook a number of major tasks of the Home Farm including silage, hay, run off and drain maintenance without pay.
[41] Lindsay left for a time to work and pursue his own interests. However, in 2006, his father once again asked him to return to work on the farm. At the time David was experiencing significant financial stress. In particular, he could not retain employees because he was unable to pay comparable wages to other farmers. Lindsay worked for six years at “very low” wages to assist his father. He incurred debt as a result.
[42] After working elsewhere between 2012 and 2017, David for the third time requested that Lindsay return to work on the farm. At this time Lindsay had been on the sickness benefit due to hip problems from a “bungled” surgery in 2012. Lindsay stated, “I understood the needs of my father (as expressed by him) outweighed the difficulties I would experience being in his employment”. David was unwell and experiencing considerable difficulty running the farm. Lindsay generally covered anything that needed doing on both the Home Farm and Wardrops farm for accommodation and $20/hr.
[43] It is clear that Lindsay undertook this farm work not for the money or opportunity but out of a sense of family obligation and belonging, as is common in farming families. He left his own life and career (where he would have more independence and often higher wages) a number of times to assist on the farm despite the long hours, low pay and often demanding behaviour from his father. Although not strictly relevant to the deceased’s moral duty, once David passed away Lindsay continued to run the farm, working 15–18 hours a day for no pay, pursuant to his father’s request that when he passed Lindsay was to “keep the farm running and make sure Noi was looked after”. This demonstrates Lindsay’s ongoing commitment and service to the family.
[44] This farm work would have also contributed to the estate, particularly in the period from 2006 where the farms were under financial stress due to lack of labour. Lindsay says that David often made “vague” promises that implied he would inherit some part of the farming enterprise. For example, in 1992 David stated Lindsay would receive “the herd” and in 2017 he promised to help Lindsay “get ahead”. Even so, and as accepted by counsel, this does not amount to a testamentary promise but indicates that Lindsay contributed to the farm, and thus the estate, to such a great degree because he expected to inherit some part of it.
[45] In Brosnahan v Meo, the Court recognised that the son’s contributions to his mother and her estate were only amplified by the “trying circumstances” in which they occurred.17 In that case the deceased’s behaviour towards her son was erratic and at times unfeeling. Here, Lindsay recounts that when he was working on the farm following his mother’s death in 1994, his father’s behaviour was “erratic” and “demanding”, insisting he work long hours and ignoring issues with his pay. He was “difficult to work with”, yet Lindsay persisted. Plainly, in this context, Lindsay’s circumstances are quite different to those of the appellant in the Court of Appeal’s recent judgment Barnard v Robertson.18 There, the Court of Appeal endorsed Simon France J’s conclusion that he did not accept that the appellant’s contribution to either the family farm or in the care of his mother “went beyond that which was to be expected of a dutiful and loving son”.19
[46] In addition, while Lindsay was young, working on the farm, he says he lived with and cared for his paternal grandmother, who had suffered a stroke and was showing signs of dementia. It involved considerable domestic work. This care would ordinarily be expected to fall to her children, including her son David, so by undertaking care duties Lindsay was providing assistance to David and his wider family.
[47] Further, between 2000 and 2002 there was a considerable dispute over Lindsay’s mother’s estate. The ultimate settlement agreement benefitted David more
17 Brosnahan v Meo, above n 4.
18 Barnard v Robertson [2023] NZCA 476.
19 At [45].
and Lindsay and Louise less than the terms of the will, but Lindsay says he signed the deed to help David and to ease the tensions occurring in the family. Such a compromise was recognised in Fisher v Kirby as a relevant contribution to the estate.20
[48] Accordingly, David’s will was required to recognise Lindsay’s belonging to the family and being part of David’s overall life. In Williams v Aucutt it was said that “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”.21 With reference to Mr Jefferson’s argument that Lindsay’s distribution represented about 0.2 per cent of the overall estate, that is the case here.
[49] While it is not clear that Lindsay was in dire financial need during the deceased’s lifetime, David would have known that for many years Lindsay was working at low pay on the farm in sacrifice of building up his own asset base.
[50] The Trust placed significant reliance on the fact that Lindsay received a distribution from his mother’s estate. However, as set out above, Lindsay in fact received less than his entitlement due to settlement with David. Additionally, in Farquharson v Farquharson, the Judge held that the fact the deceased (father) could have reasonably expected the applicant’s mother to provide for their son did not discharge or diminish the moral duty to the applicant son.22 Although it may be relevant to whether Lindsay was in need of financial maintenance, it does not affect the support required to recognise Lindsay’s place in the family, his contributions to the estate and his personal and practical assistance to his father.
[51] The Trust also referred to alleged gifts Lindsay received from David in his lifetime. Lindsay was given a handful of motor vehicles, including a tractor. I accept Lindsay’s evidence that those vehicles were given at various points in exchange for labour that was either not otherwise paid or paid very poorly. At the time Lindsay capitalised the vehicles their values were modest. I do not consider these gifts (even if they were so, in light of their expressed purpose being to exchange for labour)
20 Fisher v Kirby, above n 4.
21 Williams v Auctt, above n 14, at [52].
22 Farquharson v Farquharson [2021] NZHC 222.
adequately recognised Lindsay’s personal sacrifice and commitment working on the deceased’s farm and the other circumstances mentioned above.
[52] Then there are the interest free loans referred to by the Trust, which Noi deposes as being $6,000 in 2010, $3,000 in 2011, and $6,000 in 2016. For each loan Lindsay repaid the total sum within a year. Thus, the gift (essentially equating to the interest potentially payable on those sums for a year) was again, modest at best.
[53] There was some suggestion that David contributed to the purchase of the gold- digger’s cottage where Lindsay has over various points in time resided. Even so, on this point I prefer Lindsay’s direct evidence from his own recollection that he paid for its entire acquisition from his savings. That would have been a significant event in Lindsay’s life and one he is likely to have remembered accurately. On the other hand, the competing evidence from Noi is a second-hand account of what she was told by David. She also says that David “helped” Lindsay pay the deposit, the mortgage and rates. However, it is possible there was confusion here, as David helped Lindsay in a practical sense as Lindsay was a minor and thus unable to have a cheque account at the bank or have the rates notice issued to him. David therefore sent the cheques but Lindsay gave the money to him. Accordingly, I do not consider David’s moral duty to Lindsay was fulfilled by gifts during his lifetime.
[54] Another consideration is the size of the estate and any competing moral claims. David’s other children (including his stepson) and his grandchildren are provided for in a sizeable trust fund. The exception is, as foreshadowed, Louise who is not provided for by the trust fund, as she is not a beneficiary and only received a $5,000 payment. However, I consider the estate is sufficient to cover Lindsay’s claim without materially impacting others with a moral claim. I note that Louise was served with the present proceedings and chose to take no steps.
[55] Although there were some tensions in the relationship, I agree that nothing rises to the level of disentitling conduct on the part of Lindsay.
[56] In summary, overall, I accept Mr Jefferson’s arguments that the deceased breached his moral duty to provide proper maintenance and support for Lindsay.
What relief is sufficient to remedy the breach?
[57] The real question is to what extent should his interest from the estate be increased? As foreshadowed, Lindsay argued that it should be twenty per cent and in cash. The trustees submitted if I found there was a breach that between 8-15 per cent was appropriate and that a particular property would meet that requirement. There is no strict rule as to what the amount should be and how it can be calculated, as there are a range of factors to consider that are invariably fact specific. In broad terms, it should not be too generous, nor should it be overly conservative.23
[58] In summary, I consider that a 16 per cent share of the estate is appropriate in the circumstances of this case. I also accept the argument that, taking account of Lindsay’s personal circumstances, that per centage should be paid in cash.
Decision
[59] David Burgess breached his moral duty to provide proper maintenance and support for Lindsay Burgess.
[60] Provision for Lindsay from the estate is increased to 16 per cent or $400,000, whichever is greater. To avoid doubt, this must be paid in cash.
[61] Counsel may exchange memoranda as to costs within one month following the date of this judgment of up to five pages.
Harvey J
23 Little v Angus, above n 8; Fisher v Kirby, above n 4.
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