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Burgess v Burgess

Burgess v Burgess

Case [2023] NZHC 1637 29 June 2023

Adequate Provision

Breach of Moral Duty

Compensatory Damages

Family Protection Act

Succession Law

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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, Auckland
Braun, 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…

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 Burgess v Burgess

Details

AGLC: Burgess v Burgess [2023] NZHC 1637
Case: [2023] NZHC 1637
Decision Date: 29 June 2023

CaseChat Overview and Summary

Lindsay Burgess, the son of the deceased, David Burgess, brought an application under the Family Protection Act 1955, seeking a remedy for what he claimed was inadequate provision for him in his father's will. He sought either 20 per cent of the estate or $500,000, whichever was greater. The trustees of the estate opposed the claim, arguing that Lindsay had been adequately provided for during his father's lifetime and had no demonstrated need for maintenance. Lindsay also claimed that he had not received the full benefits of his mother's estate due to a settlement agreement that was less favourable to him than the terms of her will. The Court had to determine whether David breached his moral duty to Lindsay and, if so, what remedy was appropriate.

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