Carter v Carter - [2013] NZHC 1071

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV-2012-463-000002 [2013] NZHC 1071

UNDER the Family Protection Act 1955

IN THE MATTER OF an appeal from the Family Court at
Waitakere

BETWEEN YVONNE PAULA CARTER Appellant

ANDBRENT CAMPBELL CARTER, SCOTT JONATHAN CARTER, NIKKI ANGELA ROGERS AND DANIEL WARD CARTER First Respondents

ANDPUBLIC TRUST TAUPO Second Respondent

Hearing: 21 September 2012

Counsel: J H Olphert and A G Carbon for Appellant
R C Gregory and G Muller for Respondents

Judgment: 13 May 2013

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 4:30pm on the 13th May 2013.

JUDGMENT OF WILLIAMS J

Solicitors:
Olphert & Associates Ltd, Solicitors, Rotorua
Smith & Partners, Solicitors, Waitakere City

YVONNE PAULA CARTER V BRENT CAMPBELL CARTER, SCOTT JONATHAN CARTER, NIKKI ANGELA ROGERS AND DANIEL WARD CARTER HC ROT CIV-2012-463-000002 [13 May 2013]

Introduction

[1] This case concerns the will of John Carter, who died on 20 August 2008. In his will, John provided that his adult children from his first marriage to Marjorie Carter (Brent, Ward and Scott Carter and Nikki Rogers, the first respondents) were to receive the residue of his estate. This turned out to be about
10.5 per cent of its total value. John left the remainder to his wife at the time he died

(Yvonne Carter, the appellant).

[2] His children were not happy. In March 2009, they applied to the Family Court under s 4 of the Family Protection Act 1955 (the Act) for further provision from the estate. Yvonne opposed the application.

[3] On 10 November 2011, the court gave judgment in favour of the children.1

The learned Judge found that the deceased owed his children a moral duty to provide them with more than he had decided to leave them. Her Honour decided that a more reasonable share of the state would be $50,000 per child (a total of about 40 per cent of the estate in value).

[4] Yvonne now appeals against that decision. Her concerns, it seems, are not with the learned Judge’s statements of the law, or the background facts. Rather, they are with how the Judge applied that law to the facts. Specifically, she alleges:

(a) the Judge was wrong to find John’s moral duty to his children extended to making further provision for them than he had made in his will; and

(b) in the alternative, if John did breach his moral duty, the Judge’s
calculation of a reasonable share of the estate to reflect that larger duty was excessive.

1 BCC v Public Trust Taupö FC Taupo, FAM-2009-069-000091, 10 November 2001.

[5] The children oppose the appeal. The Public Trust (the second respondent)

has signalled it will abide the decision of the court.

The facts

[6] The facts are fully set out in the Family Court judgment and I draw heavily from it in the following brief summary.

[7] John married Marjorie Carter and raised four children: Nikki, Scott, Ward and Brent. The…

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 Carter v Carter

Details

AGLC: Carter v Carter [2013] NZHC 1071
Case: [2013] NZHC 1071
Decision Date: 13 May 2013

CaseChat Overview and Summary

This appeal concerns the distribution of the estate of John Carter, who died on 20 August 2008. The will left his estate to his wife, Yvonne, and a small residue to his children from his first marriage. The children sought further provision from the estate under s 4 of the Family Protection Act 1955. The Family Court found that John had breached his moral duty to his children and awarded them $50,000 each. Yvonne appeals against the decision.

The court had to determine whether the Family Court was correct to find that John owed his children a moral duty and whether the award was excessive. The appeal against the recognition of the moral duty was governed by Austin, Nicholls principles. The appeal against the quantum of the award was governed by May v May principles. The court found that the Family Court had not erred in finding that John owed his children a moral duty. The Family Court had considered all relevant factors and weighed all moral imperatives. The appeal against the quantum of the award was governed by the May v May test. The award was a substantial reallocation of the estate but could be defended as reasonable. The modest size of the estate, the number of claimants, and Yvonne's own financial circumstances were relevant. The appeal against the quantum of the award was dismissed accordingly.

The final orders of the court were that the appeal be dismissed and that costs be reserved.

Orders