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…
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