Cartwright v Joseph - [2018] NZHC 2383

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2016-488-000058

[2018] NZHC 2383

IN THE MATTER of the Family Protection Act 1955

AND

IN THE MATTER

of the estate of John Boyd Harrison

BETWEEN

CATHERINE DAILE CARTWRIGHT and SARAH BEVERLEY HARRISON

Plaintiffs

AND

NITA WAIRANGI JOSEPH, BARRIE AGAR, BRETT HOGAN and TREVOR

DRAFFIN as trustees and executors of the estate of John Boyd Harrison

Defendants

Hearing: 6 June 2018

Appearances:

Alex McDonald and Courtney Rutledge for the Plaintiffs Johanna Robertson for Nita Joseph

Juliet Golightly for the Executors

Judgment:

11 September 2018

JUDGMENT OF MOORE J

This judgment was delivered by me on 11 September 2018 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

CARTWRIGHT & ANOR v JOSEPH & ORS [2018] NZHC 2383 [11 September 2018]

Introduction

[1] A father breached his moral duty to his daughters by failing to make adequate provision for them in his will. This omission aggravated his failure to provide them with adequate emotional and economic support during their childhood. His daughters claim relief from his estate. The question this judgment confronts is what form that relief should take.

An overview

[2] John Boyd Harrison, known as Tim, died on 23 September 2016. He was survived by Nita Joseph, his partner of 38 years, and his two children, Catherine Cartwright (“Cathy”) and Sarah Harrison (“Sarah”).

[3] In his will of 17 June 2014, for which probate was granted on 1 December 2016, Tim left the whole of his estate to Nita, should she survive him. The estate is valued at just under $4 million; approximately $92,000 in cash and land valued at
$3.8 million.1 The land consists of a large block in Pataua South, east of Whangārei.
It has significant subdivision potential.2

[4] Cathy and Sarah now apply under s 4 of the Family Protection Act 1955 (“the Act”) for provision under the estate. It is not in dispute that Tim held, and breached, his moral duty to make adequate provision for Cathy and Sarah. Accordingly, the issues for resolution are:

(a)What award is sufficient to remedy the breach of moral duty? and

(b)How is this best effected, given the bulk of the estate is held in land?

1 According to a 2017 valuation.
2 I refer to this land, which in fact comprises two sections, as “the Pataua South property”.

Background

Tim’s upbringing and marriage to Cathy and Sarah’s mother

[5] Tim was born on 19 November 1948. He grew up on the family farm in Pakuranga. His family was wealthy. This was due to a bequest by his grandfather, George Harrison. George set up the George Harrison Trust, which held as its primary asset Pigeon Mountain in Half Moon Bay. It was sold in 1971 for $695,000. Tim and his three siblings each received approximately $90,000.

[6] Tim met Esther Harvey, the mother of Cathy and Sarah, in the late 1960s, when she was working on…

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 Cartwright v Joseph

Details

AGLC: Cartwright v Joseph [2018] NZHC 2383
Case: [2018] NZHC 2383
Decision Date: 11 September 2018

CaseChat Overview and Summary

This case involved a dispute over the estate of John Boyd Harrison, who died on 23 September 2016. He was survived by Nita Joseph, his partner of 38 years, and his two daughters, Catherine Cartwright and Sarah Harrison. In his will, Harrison left the whole of his estate to Nita, should she survive him. The estate is valued at just under $4 million; approximately $92,000 in cash and land valued at $3.8 million. The daughters applied under s 4 of the Family Protection Act 1955 for provision under the estate. The legal issues were whether there had been a breach of moral duty, and if so, what form the relief should take. The court found that Harrison breached his moral duty to his daughters by making no provision for them in his estate. The court considered the appropriate quantum and form of award, taking into account the value and potential development of the land. The court decided that an award of 10 per cent of the estate to each daughter would be sufficient to remedy the breach, and invited the parties to comment on the feasibility of a proposed option to realise funds for the award. The court did not make final orders at that stage.

Orders