Carson v Lane - [2019] NZHC 3259

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2018-442-42

[2019] NZHC 3259

UNDER the Family Proceedings Act 1955

IN THE MATTER

of an application for further provision from the estate of the late DAVID WAYDE CARSON

BETWEEN

WAYDE DAVID CARSON, MELANIE JANIS BROWN, KERI LEA CROSSAN, TONI ROBYN TWOMEY

First Plaintiffs

CONNOR ALAN TWOMEY, KIERAN JAMES TWOMEY, CASSIDY JANESSA CARSON, MOLLIE LEE BROWN, SAMUEL MICHAEL BROWN AND LUCY SOPHIA BROWN

Second Plaintiffs

AND

ROBERT ALAN LANE AND ANISSA

JEAN BAIN in their capacity as trustees and executors of the estate of the late DAVID WAYDE CARSON

Defendants

Hearing: 2–3 December 2019

Counsel:

G A Cooper and A L Bodman for First Plaintiffs (the Children) P F Whiteside QC for Second Plaintiffs (the Grandchildren)

J B Ormsby for Defendants
G F Kelly and K H Lawrence for Trustees

Judgment:

11 December 2019

JUDGMENT OF THOMAS J

CARSON v LANE [2019] NZHC 3259 [11 December 2019]

Table of contents

Introduction [1]

Background [4]

Mr Carson’s wills [8]

The Trust [10]

Memorandum of guidance [12]

The Estate [18]

The claims [23]

The evidence [30]

The Children [32]

Children’s personal and financial circumstances [45]

The Grandchildren [50]
Farm properties and Galloway cattle [51]

Observations [61]

The law [62]

The Act [62]

Is the testator’s past behaviour, including estrangement, relevant? [84]

Relevance of the Trust  [88]
Should a percentage-based approach be taken?  [93]
The Law relating to grandchildren  [96]

What provision should be made for the Children? [104]

The Trust [115]

Award [117]

The Grandchildren [123]

Result [127]

Costs [128]

Introduction

[1] What moral duty does a father owe on his death to his four adult children and six grandchildren when he leaves an estate of $17 million, makes no provision for them in his will, but names them as discretionary beneficiaries under a trust that inherits the residue of his estate?

[2] That is the issue in these proceedings brought by the children and grandchildren of the late David Wayde Carson under the Family Protection Act 1955 (the Act). The executors of the will abide the decision of the Court. The trustees of the trust formed by Mr Carson acknowledge he breached his moral duty but disagree with the plaintiffs as to the correct provision to be made.

[3] The claims were brought outside the period of 12 months following the grant of probate as required under the Act.1 The strength of the claims, particularly of the children, the fact the delay is excusable as the children and grandchildren were not notified of Mr Carson’s death for about two and a half years, and the lack of prejudice to any other beneficiaries, means leave to apply out of time is granted by consent.

Background

[4] Mr Carson had four children, Toni Twomey, Keri Crossan, Wayde Carson and Melanie Brown (the Children). They are the only natural children of Mr Carson. They are now aged in their late 40s and early 50s. For ease and without…

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 Carson v Lane

Details

AGLC: Carson v Lane [2019] NZHC 3259
Case: [2019] NZHC 3259
Decision Date: 11 December 2019

CaseChat Overview and Summary

- Parties: The plaintiffs in this case are the four adult children and six grandchildren of the late David Wayde Carson, while the defendants are Robert Alan Lane and Anissa Jean Bain, the trustees and executors of Carson's estate.

- Nature of the dispute: The case revolves around the deceased's failure to make adequate provision for his children and grandchildren in his will, despite leaving an estate worth $17 million. The plaintiffs argue that Carson had a moral duty to provide for them and that his failure to do so in his will amounts to a breach of that duty. The defendants, as trustees and executors, acknowledge the breach but dispute the amount of provision that should be made.

- Court: The case was heard in the High Court of New Zealand, Nelson Registry, under the Family Proceedings Act 1955.

- Legal issues: The primary legal issues include whether the testator's past behaviour, including estrangement, is relevant to determining the moral duty owed to his children, the relevance of the trust established by the testator, whether a percentage-based approach should be taken in determining the award, and the law relating to grandchildren's claims.

- Court's reasoning and outcome: The court considered the size of the estate, the lack of competing moral claims, and the personal circumstances of the children and grandchildren. It determined that the testator had indeed breached his moral duty to provide for his children and grandchildren. The court awarded $1.25 million to each of the four children, considering it the minimum necessary for their proper maintenance and support. The court found no basis for making an award to the grandchildren, as the children's improved financial positions would likely enable them to provide for their own children. The court also decided that the estate should bear the reasonable costs of all parties involved in the litigation.

- Final orders: An award of $1.25 million is made to each of the Children, net of any costs. There is no award to the Grandchildren. The Estate is to bear the reasonable costs of all parties.

Orders