Chin v Payne - [2022] NZHC 3095

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-000350

[2022] NZHC 3095

BETWEEN
SANDRA CHIN (PAYNE)

Plaintiff

AND

STEVEN PAYNE as the executor of the estate of Donald Gordon Payne

First Defendant

AND

STEVEN PAYNE

Second Defendant

Hearing: 25 – 26 October 2022

Appearances:

P R W Chisnall and D P MacKenzie for the Plaintiff G E Sleven for the First Defendant

B J J Sheehan and S D Balloch for the Second Defendant

Judgment:

24 November 2022

JUDGMENT OF GENDALL J

Introduction

[1] This proceeding concerns the estate of Donald Gordon Payne (Donald), who died on 22 December 2020. In his last will, dated 16 March 2017, (the 2017 Will) Donald appointed his son, the first defendant Steven Payne (Steven), as executor of his estate, and gave all his estate to Steven.

[2] Donald’s estate primarily comprised two residential properties, together with monies held in a bank account. As at 15 August 2022, that estate was valued at approximately $4,070,000.

SANDRA CHIN (PAYNE) v STEVEN PAYNE as the executor of the estate of Donald Gordon Payne [2022] NZHC 3095 [24 November 2022]

[3] Donald had two children, Steven, born in 1966, and the plaintiff, Sandra Chin (née Payne) (Sandra), born in 1961. Donald left nothing to his daughter Sandra in the 2017 Will.

[4]Sandra brings this proceeding under three heads of claim:

(a)Firstly, Sandra seeks Court-ordered provision from Donald’s estate under the Family Protection Act 1955 (the FPA).

(b)Secondly, Sandra also makes a claim that earlier wills made by Donald and his late wife Peggie Payne (Peggie), dated 13 February 2009,1 were mutual wills in accordance with s 30 of the Wills Act 2007.

(c)Finally, Sandra brings a third claim alleging that one of the properties owned by Donald at the date of his death (and in which she has been residing as her home rent-free for the last 40 years) was held on constructive trust for her in its entirety.

Background facts

[5] In the early days when Sandra and Steven were young, all parties seem to accept that the Payne family was a loving one. In his affidavit evidence, Steven has described it in the following way:2
My family was a loving and warm family and we were close to our extended family on my Mother’s side as Donald’s family were all living overseas.

[6] Donald was an electrician and started his and Peggie’s business, known as Don Payne Ltd, in 1974, when the two children were young.

[7] Initially, the family lived in their family home at 3 Dominion Park Street, Johnsonville (the Johnsonville property), a home which the parents had built. In 1978, the family moved from the Johnsonville property to 58 Moana Road, Plimmerton (the Plimmerton property). Sandra then left home in around 1982, at the age of 21, to be

1 Donald’s 2009 will I refer to hereafter as “the 2009 Will”.
2 Affidavit of Steven Payne, 14 September 2021, at [9].

with…

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 Chin v Payne

Details

AGLC: Chin v Payne [2022] NZHC 3095
Case: [2022] NZHC 3095
Decision Date: 24 November 2022

CaseChat Overview and Summary

Sandra Chin (Payne) brought a claim against Steven Payne, as executor of the estate of his father Donald Gordon Payne, under the Family Protection Act 1955 (FPA). She also claimed that the 2009 wills made by Donald and his late wife Peggie were mutual wills under s 30 of the Wills Act 2007 and that one of the properties owned by Donald was held on constructive trust for her. The court considered the claims under the Wills Act and constructive trust before turning to the FPA claim. The court found that the 2009 wills were not mutual wills, as there was insufficient evidence of an enforceable promise between Donald and Peggie not to alter their wills. The court also dismissed Sandra’s claim for a constructive trust, finding that her contributions to the property did not manifestly exceed the benefits she received from living there rent-free. Turning to the FPA claim, the court found that Donald breached his moral duty to Sandra by disinheriting her entirely. The court ordered that the Johnsonville property be transferred to Sandra and that $600,000 be paid from Donald’s estate to Sandra. The court also awarded Sandra costs on a category 3C scale basis, to be met by Donald’s estate.

Orders