Couteur v Norris
[2018] NZHC 1074
•23 May 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2016-404-3234 [2018] NZHC 1074
UNDER The Law Reform (Testamentary Promises) Act 1949 IN THE MATTER
The Estate of Sidney Howard le Couteur
BETWEEN
J LE COUTEUR
Plaintiff
AND
AND
R N T NORRIS AND R G WILSON
Defendants
H F J LE COUTEUR AND S C LE COUTEUR
Interested Parties
Hearing: 26-28 March 2018 Appearances:
A Steele and K R Narayan for the Plaintiffs C Harris for the Defendants
G Cooper and A Worrill for the interested parties
Judgment:
23 May 2018
JUDGMENT OF POWELL J
This judgment was delivered by me on 23 May 2018 at 3.30 pm pursuant to
R 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors/Counsel:
Martelli McKegg & Cormack, Auckland Jackson Russell, Auckland
Cavell Leitch, Christchurch
LE COUTEUR v NORRIS AND ORS [2018] NZHC 1074 [23 May 2018]
[1]Sidney le Couteur passed away on 8 April 2016 at the age of 93.
[2] Under Mrs le Couteur’s will of 27 March 1991 (“the 1991 will”), her daughter, Juliet le Couteur stood to receive a property at 50 Pupuke Road, Takapuna (“Pupuke Road”), together with specified chattels held by Mrs le Couteur at her death. In addition to these specific bequests Juliet would then share equally in Mrs le Couteur’s estate with her brothers Howard and Stephen.
[3] Unfortunately for Juliet, there is no dispute that Pupuke Road was sold in 1997. The result is that apart from the specified chattels, the remainder of Mrs le Couteur’s estate, including any real estate owned by Mrs le Couteur, is, in terms of the 1991 will, to be shared equally between Juliet, Howard and Stephen.
[4]Despite this, on 13 July 2016 Juliet wrote to her brothers and advised:
You will be aware that the executors and trustees of the will have taken the position that because Mother did not amend the will when she shifted from 50 Pupuke Road, the part of the will gifting me her property/home is effectively null and void. As a result, the property at Taurarua Tce is part of the general estate to be shared between the three of us.
I believe that there is sufficient testamentary evidence to satisfy a Court that irrespective of where Mother was living when she died, she wished me to be the beneficiary of her home. I would be most disappointed if we could not resolve this matter between ourselves and I was left with no option but to resort to the Court. As I see it, the ball is in your court now. My next step depends on your decision. If you have doubts about Mother’s intentions in this matter or evidence to suggest that she, or for that matter Dad, did not want me to have their property, I invite you to direct me to the evidence. I mention Dad because the will was made in 1991 before he died and when Mother and Dad were both living at Pupuke Road. It is also relevant to recall that Dad expected me to look after Mother following his demise and I have certainly sought to live up to this expectation with many of my life and family decisions having Mother’s well being and interests in the forefront.
[5] Howard and Stephen did not agree with the proposition set out in Juliet’s letter, and Juliet commenced the present proceedings pursuant to the Law Reform (Testamentary) Promises Act 1949.
[6] The operative provision of the Act for the purposes of Juliet’s claim is s 3, which relevantly provides:
3Estate of deceased person liable to remunerate persons for work done under promise of testamentary provision
(1)Where in the administration of the estate of any deceased person a claim is made against the estate founded upon the rendering of services to or the performance of work for the deceased in his lifetime, and the claimant proves an express or implied promise by the deceased to reward him for the services or work by making some testamentary provision for the claimant, whether or not the provision was to be of a specified amount or was to relate to specified real or personal property, then, subject to the provisions of this Act, the claim shall, to the extent to which the deceased has failed to make that testamentary provision or otherwise remunerate the claimant (whether or not a claim for such remuneration could have been enforced in the lifetime of the deceased), be enforceable against the personal representatives of the deceased in the same manner and to the same extent as if the promise of the deceased were a promise for payment by the deceased in his lifetime of such amount as may be reasonable, having regard to all the circumstances of the case, including in particular the circumstances in which the promise was made and the services were rendered or the work was performed, the value of the services or work, the value of the testamentary provision promised, the amount of the estate, and the nature and amounts of the claims of other persons in respect of the estate, whether as creditors, beneficiaries, wife, husband, civil union partner, children, next-of-kin, or otherwise.
(2)This section shall apply—
(a)whether the services were rendered or the work was performed before or after the making of the promise …
[7] It is clear that the critical part of s 3(1) is that it is for the claimant, in this case Juliet, to prove “an express or implied promise by the deceased to reward [him or her] for the services or work by making some testamentary provision for the claimant …”. That is, there must be not only a promise and the “rendering of services to or the performance of work for the deceased”, but there needs to be a clear nexus between the promise and the services or work. This point was made by the Court of Appeal in Jones v Public Trustee:1
In our opinion the word “promise” now being a defined term, does include unilateral declarations by a deceased person of his intention to reward others for services or work performed by them by the making of a testamentary provision in their favour, and that it is not necessary that the “promise” should amount to a contractual undertaking to be within the section. In short, the intention of the Legislature, as expressed in the present Act is that in such circumstances, the deceased person is required to keep his word where that word may be taken to relate expressly or by implication to services given or
1 Jones v Public Trustee [1962] NZLR 363 (SC) at 374.
to be given. It does not matter whether the “promise” is made before or after services have been performed. The important question in every case, is whether the claimant has satisfactorily proved that the deceased person did make a “promise” to him of a testamentary provision as a reward for services rendered or to be rendered to the deceased.
[8] Although the scope of “work or services” is drawn very widely, any such work or services is required to go “beyond the normal incidents of [a] family relationship”.2 As the Court of Appeal explained in Byrne v Bishop:3
To qualify as “services” or “work” under the Act, what has been done for the deceased must have been beyond the normal expectations of family life or social interaction. Services can include not only things done for the deceased but also companionship, affection and emotional support exceeding what is normally to be expected of a relative, a member of the same household, a neighbour or a friend. This Court said in Thwaites v Keruse (1993) 11 FRNZ 19 at p 23:
“Companionship, affection, cohabitation, may properly be regarded as ‘services’ in some circumstances, where for example the promisor is elderly or lonely or in poor health. But that cannot be so in the case of young people simply sharing together the pleasures of each other’s company in a common household.”
[9]The issues to be determined are therefore:
(a)Did Mrs le Couteur make a promise to leave her home to Juliet as a reward for work and services performed by Juliet either before or after the promise was made?
(b)If the answer is yes, was the promised reward reasonable having regard to the work or services provided?
Relevant facts
[10] In March 1991, Mrs le Couteur and her husband Philip, who at that time were living at Pupuke Road, updated their wills. The new wills mirrored each other; in the event that one died the other succeeded, while both wills provided in the event that neither Mr or Mrs le Couteur survived the other, Pupuke Road and the specified
2 Re Welch [1989] 2 NZLR 1 (CA) at 8.
3 Byrne v Bishop [2001] 3 NZLR 780 (CA) at [6].
chattels would transfer to Juliet, with the balance of the estate to be divided equally among their three children.
[11] Mr le Couteur passed away in 1995. After his death Mrs le Couteur continued living at Pupuke Road until 1997, when she sold Pupuke Road and with Juliet and her husband Tony Garnier (“Tony”), jointly purchased a property at 12A Manawa Road, Remuera (“Manawa Road”). Mrs le Couteur, Juliet and Tony moved in to Manawa Road together but, for a variety of reasons which are not material to the present case, Mrs le Couteur decided to return to the North Shore within a relatively short period to be closer to both friends and social activities that she was engaged in. As a result Mrs le Couteur purchased 10G Brett Avenue, Takapuna (“Brett Avenue”), where she moved in April 2000.
[12] In May 2001, while living at Brett Avenue, Mrs le Couteur saw Dr Jonathan Baskett regarding memory problems she had been experiencing. Dr Baskett undertook an assessment and relevantly recorded:
She told me that when she goes out she can no longer contribute to a conversation, and finds that the right words fail her, and that this tends to isolate her. She attends classes at the University of the Third Age (U3A), taking early modern European history, history of music, and architecture. She now finds the subject matter hard to follow and to remember. She told that that “things just slip my mind” and she now needs to plan or have systems to as not to lose things around the house, and to remember what she is doing for the day. She is still driving her car, but only taking certain routes, as she feels she needs to know the patterns of the roads or else she may get lost.
She feels that the above has been a gradual loss, probably over several years.
It is of note that her life has changed quite dramatically, particularly since her husband died some years ago. Whilst he was alive she was “loved and cherished”, and now she is on her own. There was an aborted attempt to live with her son and daughter-in-law, but she felt she had to extract herself from that and buy another house where she now lives and has been there for about a year.
[13]After undertaking an examination Dr Baskett commented:
I am uncertain as to whether she has benign forgetfulness which occurs as a normal feature of ageing, or whether she has an early but mild dementing illness. I have arranged a CT scan which I would expect to be normal, and will review these tests with her and make a decision then as to whether it would be appropriate to refer her to the memory clinic for further evaluation.
[14] Later in 2002, Mrs le Couteur appears to have informally altered a copy of her 1991 will so as to substitute Brett Avenue for Pupuke Road. Her apparent intention at that time was confirmed by a handwritten note which stated:
I Sidney Howard Le Couteur bequest my home at 10G Brett Avenue
Takapuna
Shore City Auckland
to my daughter Juliet Le Couteur in appreciation for all her loving kindness to me always.
On this day 24th August 2002 S Le Couteur
This is my intention
I explained to Stephen On 22 August 2002
[15] In 2004 Juliet, apparently concerned at Mrs le Couteur’s ability to continue to live by herself at Brett Avenue, started looking for a suitable place that Mrs le Couteur, could live together with Juliet, Tony and their daughter. In July 2004 Juliet and Tony successfully bid by tender on three townhouses located in a single development in Parnell (“the Parnell properties”). The three townhouses, 51 Gladstone Road and 17A and 17B Taurarua Terrace, had a total purchase price of $1.8 million, with settlement to take place on 30 November 2004. At some point Mrs le Couteur appears to have agreed to contribute $800,000 towards the total purchase price, and her share of the deposit ($60,000) was paid on 21 July 2004.
[16] There is little information available as to how the transaction was intended to be structured, or indeed the nature of Mrs le Couteur’s personal interest. In this regard Juliet and Tony wrote to their solicitor, John Morton of Morten Tee & Co, on 8 October 2004 and advised:4
4 This letter was later re-issued without handwritten amendments on 10 October 2004.
Re Tony Garnier/Juliet LeCouteur purchase of 51 Gladstone Rd and 17A Taurarua Tce AND Sidney Le Couteur purchase of 17B Taurarua Tce:
• Attached is a full set of documents for each purchase
We will advise you in due time (after discussion with Sidney) as to whether we will continue the existing arrangements of a single payment for AkCity and ARC rates (and presumably other services) for all three addresses.
By all means send the documents regarding 51 Gladstone and I7A Taurarua to the BNZ as requested by them.
To confirm, purchase arrangements from the Vendor are a single payment on due date (30 November) of $1.8m for the complete property less deposit of
$180,000 that has been paid.
•The purchase price to be met by Tony G/Juliet L $lm less deposit of
$120,000 AND Sidney L $800,000 less deposit of $60,000.
Regarding Tony G/Juliet purchase - this will be met from sale of 18 St Vincent Ave which we confirm as $885,000 and a Mortgage One facility with BNZ. The BNZ M.One limit is $280,000 of which we anticipate no more than
$90-$100k being used for the purchase + related costs.
As discussed, we suggest the BNZ Mortgage facility be secured over 17A Taurarua.
Regarding Sidney purchase - arrangements will be confirmed with you in due time via Juliet.
[17] No subsequent arrangements appear to have been confirmed “regarding Sidney purchase”. Mrs le Couteur’s executor, Richard Norris, in his evidence before the Court did however recall the following discussion which must have taken place at around this time:
… I recall that I had a phone call from Juliet, it must’ve been late 2004 I suppose, when she asked me if I would speak to her mother and I did speak to Sidney, or I tried to because she was very vague, and she said, “Oh, we’re buying a property in Parnell and I’m going to be putting some money into it.” And I said to her, at the time, she didn’t specify an amount and I said, Well are you advancing the money as a loan or are you buying an interest in the property? And, unfortunately, she didn’t really know what I was talking about so I asked her to put Juliet back on the phone and probably about that time I said, “look, if there is any issue here contact John Jackson in our office who deals with conveyancing.”
[18] Mr Norris’s partner John Jackson appears to have been contacted by Juliet some time prior to settlement, with a view to providing Mrs le Couteur advice on the transaction, and Mr Jackson indeed recorded in a file note that Mrs le Couteur and
Juliet were “going to buy a property – three flats in Gladstone Road”. As well as noting the settlement date and Mr Morton’s details, Mr Jackson also recorded the total cost of the properties and that:
Mrs le C paying $800,000 daughter and SinL $1,000,000
[19] Notwithstanding this contact there does not appear to be any evidence that Mr Jackson ever spoke to Mrs le Couteur directly, and certainly Mr Jackson’s records do not show any advice as having been provided.
[20] In the event the settlement of the Parnell properties proceeded on 30 November 2004. On 20 December 2004, some three weeks after the settlement, Mr Jackson made a further file note, this time with regard to a telephone conversation he had had with Mr Morton which revealed the structure of the transaction was by no means clear. In particular Mr Jackson recorded:
John Morton
Le Couteur
May be rearranging the situation so that mother lends the funds to [Juliet] Husband. He has put a caveat on CT meantime + holds transfer unregistered.
20.12.04
Problems with memory …
[21] In the event it was not until April 2005 that Mr Morton formally reported to Tony and Juliet about the settlement (but not, apparently, to Mrs le Couteur). Of significance to Mrs le Couteur however, Mr Morton advised:
If you refer to the updated title documents you will see that the final registration of 17B Taurarua Terrace is withheld and I have instead secured the title by caveat as an interim measure. 17B Taurarua Terrace is intended to be Sidney’s property, and I hold a transfer document which can be registered to that effect. However, in the period prior to settlement I mentioned my concerns regarding the provision of independent legal advice for Sidney. In part this arises from the global purchase price of $1,800,000.00 for the three properties and the need to attribute an ownership to Sidney for one of those properties and in relation to her monetary input. I continue to feel it necessary for another solicitor to discuss the matter with Sidney to ensure that she understands the implications of the matter and is content with the ownership outcome. You are then free of any future criticism, should that otherwise be possible, and I would be seen to have discharged my responsibilities to Sidney in ensuring that she has had independent advice. I spoke to John Jackson on
two occasions, once prior to and once following settlement and he was going to meet with Sidney to provide advice. I do not know whether he has done so or whether it is necessary for Juliet to initiate an appointment with John. I know that he was not able to see Sidney prior to the settlement due to work pressures but surely can at this point. I have protected 17B Taurarua Terrace with a caveat in your names and have an open transfer document to complete the registration to Sidney. However I felt it a bit presumptuous to register the transfer to Sidney until she had received the separate advice.
[22] In the event Mrs le Couteur did not immediately move to Parnell. There appears to have been some indication that Mrs le Couteur preferred 51 Gladstone Road rather than 17B Taurarua Terrace, although renovations were undertaken at 17B Taurarua Terrace to make the home more suitable for her. In the interim Mrs le Couteur remained at Brett Avenue which did not sell until July 2005, with Mrs le Couteur moving to 17B Taurarua Terrace upon the settlement of Brett Avenue in January 2006.
[23] On 11 September 2005 Juliet wrote to Mr Jackson with regard to the outstanding issue of independent legal advice in the acquisition of the Parnell properties noting:
As discussed with you last week, I am enclosing a copy of John Morton's letter to me and my husband concerning his decision to refrain from registering the property at 17B Taurarua in my mother's name until she has received independent legal advice, that advice being around the issue of her contribution to the purchase of the properties at 51 Gladstone Rd and 17 A and 17 B Taurarua Tce. As already disclosed, Sidney decided that she wanted to contribute $800,000 to the overall purchase, the purchase price being
$1,800,000. It was her decision to make this contribution, the expectation being that this would secure for her one of the three apartments and enable her to see out her life in close proximity to me and my family. My two brothers have been apprised of her decision and the basis for it. They have no objection to it and rely on me to look after our mother. They know that having her ‘close at hand' will make this easier, both for mother and me. Howard resides in Christchurch and Stephen is temporarily living in Britain.
It may be that John Morton's concerns could be addressed by way of a written agreement between me, my husband and Sidney which provides for our respective contributions to the purhase of the three properties to be recognised in the event of the properties being sold. In other words, the proceeds of any sale would be distributed in the same ratio as our purchase contributions. If you consider there is any merit in this suggestion, I would be pleased to discuss it with you.
As mentioned in our discussion, it seems timely to consider the updating of Sidney's will. Although Sidney does have short term memory problems, I am not persuaded that she lacks testamentary capacity, whatever that term means. She still has her driver's licence and manages to drive across the Harbour
Bridge. She operates an Efpos card, regularly attends U3A classes on the North Shore, cooks her own meals, housekeeps, gardens etc. In other words, although her memory can be a problem, she lives a 'normal' life and is as competent as many others of her age, or younger.
[24] Jackson Russell did not respond until 23 March 2006, at which time a staff solicitor, Johanna Robertson, wrote to Juliet on his behalf and advised:
1.We write further to past correspondence in this matter and apologise for the delay in responding to your letter of 11 September 2005.
2.Mr John Jackson has asked me to be in contact with you regarding the situation with the purchase of 51 Gladstone Road and 17A and 17B Tararua (sic)Terrace.
3.We have several documents on file:
(a)An Enduring Power of Attorney in Relation to Property dated 1 June 1995;
(b)An Enduring Power of Attorney as to Personal Care and Welfare dated 1 June 1995;
(c)A copy of your mother's will dated 27 March 1991.
4.Mr Jackson has asked that if you still require our services, that the writer provide the independent advice to your mother regarding the purchase of the Parnell properties.
5.We will need to assess certain matters, the first of which is whether or not your mother currently has capacity to make contracts or to make a will.
[25] No response appears to have been sent by Juliet and no further attempts to provide Mrs le Couteur with independent legal advice appear to have been undertaken.
[26] Notwithstanding the uncertainty regarding the conveyancing aspects of the Parnell properties, it appears clear that Mrs le Couteur enjoyed living at 17B Taurarua Terrace and the close proximity it afforded to Juliet and her family.
[27] In the meantime Mrs le Couteur’s initial memory issues continued to be monitored. In May 2005, in company with Juliet, Mrs le Couteur was assessed by Dr Alan Jenner, a consultant physician for the elderly, at which time she was formally diagnosed with “probable Alzheimer’s – mild”. With regard to the onset of the condition Dr Jenner noted:
To summarise her past history, she has noted memory impairment over the last 4-5 years predominantly involving her short term memory. The onset of this appeared to be rather gradual and a deterioration over this time has been gradual without acute deterioration. Her daughter has noticed a particular worsening since the middle of last year and more so over the last few months. Functional difficulties have not been apparent until the last 6 months or so. An instance of this includes when she was getting her drivers' licence renewed she stood in the queue for several days in a row and didn't remember when she got to the front of the queue each time why she was there and indeed assistance had to be obtained from her daughter at this time. She became confused about a number of appointments regarding her driving test and on one occasion sat in the car for several hours outside the testing station. She did eventually pass her driving test.
Mrs Le Couteur manages at home well with no difficulties emerging with respect to cooking or housework and there have been no safety concerns regarding leaving elements or heaters on etc, leaving doors unlocked at night etc. She has found it increasingly difficult to follow some classes that she has been taking. Her daughter has not noted any distinct personality changes although felt that she has perhaps been a little more apathetic recently. There have been no word-finding difficulties noted. As mentioned she has recently passed her driving test and she is not concerned in any way about her driving. Her family is also not concerned regarding this. She does tend to stick to routes that she knows well.
[28]With regard to Mrs le Couteur’s diagnosis Dr Jenner advised:
She has deficits in multiple areas of cognition including memory, together with a deterioration over time and functional difficulties due to this. She thus fulfils the criteria for dementia and the most likely aetiology of this is Alzheimer’s disease. A vascular component cannot be excluded, ie a mixed Alzheimer’s/vascular process. She is certainly in the mild stages of this and although there are some functional difficulties she appears to be managing well at home. I have discussed this diagnosis with Mrs Le Couteur and her daughter. I do not think that mild cognitive impairment is a possibility in her case as there are functional difficulties and evidence of functional deficits in other areas of cognition and this is an important distinction as we have no evidence that cholinesterase inhibitors are helpful in mild cognitive impairment whereas they are in Alzheimer’s disease. It was rather upsetting to Mrs Le Couteur and of course to her daughter as well to learn of this diagnosis. I spent some time discussing the diagnosis, nature of the disease, likely progression and what can be done to help this. … Her daughter is considering a move for Mrs Le Couteur, possibly to an apartment near to her in Parnell and we discussed the pros and cons of such a move.
[29] Despite the diagnosis, which as Dr Jenner noted was very upsetting to both Mrs le Couteur and Juliet, it is apparent from Mrs le Couteur’s medical reports that her condition remained relatively stable for a considerable period. For a considerable period Mrs le Couteur remained able to drive and in August 2005 she resumed attendance at the University of the Third Age. During this period she appeared to be
coping at home, although noting some sleep disturbance and “possibly” some visual hallucinations.
[30] In September 2006 Mrs le Couteur was reviewed by Dr Hilary Birch, who noted:
She has settled into her unit next door to her daughter In Parnell quite wall and the main problem she has is with electrical goods, not being able to work the washing machine or vacuum cleaner. She still makes her own breakfast and lunch but has an evening meal with the family. Her daughter takes her shopping and she is reluctant to go out on her own. Her MMSE today was 23/30 and over the past 18 months it has varied between 22 and 27. Overall there does not appear to have been a major decline during this time and she and her daughter both confirm this. She has however occasionally heard noises at night (knocking on the door) which her daughter does not think is real. This is not a major problem at this stage.
Her other recent problem was her fractured wrist and she has had a carpal tunnel decompression since her plaster was removed. She still gets some paresthesia in the tips of her fingers and has not regained full use of her hand. She had to stop driving because of her fractured wrist and her daughter thinks that she should not start again, which I would agree with.
[31]Likewise in March 2007 Dr Birch commented:
Dementia probably mixed Alzheimer’s and vascular. Things have not changed much over the last six months and she is managing well at home in her unit next door to her daughter. She is still making her own breakfast and lunch and having her evening meal with her family. Her daughter takes her shopping and they are both happy with the arrangement at present. Her MMSE today was 20/30 compared with 23/36 months ago. It had been fluctuating prior to that. When I saw her last time there were some complaints of hearing knocking at night but this has not been an issue recently. She is continuing on her Donepezil 10mg a day.
[32] In the end, it was not until September 2008 that Mrs le Couteur was admitted to hospital suffering from “increased confusion, unsteadiness on her feet and general decline in function”. Shortly afterwards she was admitted to the Caughey Preston rest home and hospital, where she resided until her death in April 2016.
[33] In December 2013, Juliet met with Mr Norris and another of his solicitors, Kelly Seabourne, to discuss Mrs le Couteur’s will. Ms Seabourne’s file note of the discussion recorded:
·Juliet came to see us to discuss her mother's Will. Juliet has power of attorney for her mother. Sidney is in Kohi Preston Hospital and has been for five years. She has
Alzheimer's. Sidney's care is being paid out of her capital and she also gets a pension from America.
·The Will refers to a property being left to Juliet. We explained that given this property has since been sold that particular gift in the Will adeems. Juliet acknowledged this and understands that [her] mother’s estate will be distributed amongst all the children equally.
·We then discussed the Gladstone Road properties. There are three titles two of which are registered in Tony and Juliet's name and the other one is still registered in the original proprietors name with a caveat against the property by Juliet and Tony.
·Juliet tells us that Sidney did in fact put money into the property and her name should appear on the title as registered proprietor.
·We are going to formally write to John Morton to ask him to clarify the whole situation. We are all rather puzzled.
·I said to Juliet that I would write a letter to John Morton and be in touch with her once I have received a response. She is going to have a look at home to see if she has any paperwork relating to the Gladstone Road purchase and if she does she will drop it in.
[34] Mr Norris subsequently rang Mr Morton, and his file note of the conversation recorded in part:
Total Parnell purchase $1.8m (3 ppties) Sidney to have part interest but never apportioned. John regd a caveat.
Was Sidney’s money applied in purchase? John Cd not attribute proportionate interests.
Does not know why Regn was not completed & caveat removed. Caveat over one of the properties.
[35] Jackson Russell subsequently wrote formally to Mr Morton on 10 December 2013 requesting that he review his old file for the purchase of the Parnell properties to see if he could “shed any light” on why the conveyancing had not been completed. If there was any formal reply it has not been provided to the Court. The position remains that although 17A Taurarua Terrace and 51 Gladstone Road were transferred to Juliet and Tony following the settlement of the Parnell properties in November 2004, title to 17B Taurarua Terrace has never been transferred and 14 years later remains in the names of the original vendors.
Juliet’s Claim
[36] In her evidence presented at hearing Juliet articulated the promises made by Mrs le Couteur in the following terms:
55.I first became aware of my parents' intention to leave their property to me when my father died and I read his Will. I was embarrassed by this generosity but understood that it was intended to recognize the support and love I had shown them. They knew the home and garden would be in good care if it was left to me.
56.When my mother was living at the property in Brett Avenue, we discussed the need to change her Will if I was to inherit the property. She clearly thought that the handwritten change of the address on the Will, together with her signature would be sufficient. She asked me if I would like to live at Brett Avenue. I told her I could imagine myself happily living there at some stage.
57.After my mother died, I found a note dated 24 August 2002 with her Will stating "I Sidney Howard Le Couteur bequeath my home at 10G Brett Avenue Takapuna Shore City Auckland to my daughter Juliet Le Couteur in appreciation for all her loving kindness to me always on this day 24th August 2002." …
58.When we purchased the property on Gladstone Road, my mother told me that as I was going to inherit the property anyway, she had no qualms about the amount she was putting towards the purchase. The proceeds from the sale of the Brett Avenue property went straight towards the purchase of the Gladstone Road property.
[37] Juliet likewise detailed a wide range of work that she carried out for Mrs le Couteur from 1989 (before her father’s death) which included:
(a)assisting her mother in caring for her father until his death in 1995;
(b)including Mrs le Couteur in Juliet’s “family life”;
We took her on holidays with us shared meals with her and took her out to lunch or dinner. We went to movies and concerts with her and did whatever was necessary around the garden and the house.
(c)assisting Mrs le Couteur in all of her business and banking dealings;
(d)jointly purchasing Manawa Road so that Mrs le Couteur could live with Juliet and her family;
(e)assisting Mrs le Couteur set up Brett Avenue and, in particular, helping in the garden and selecting new furnishings;
(f)attending body corporate meetings associated with Brett Avenue;
(g)having Mrs le Couteur visit and stay overnight “sometimes”;
(h)visiting Mrs le Couteur regularly at Brett Avenue;
(i)providing “much reassurance and kindness” after Mrs le Couteur started suffering from memory loss;
(j)shopping for Mrs le Couteur;
(k)taking Mrs le Couteur to medical appointments;
(l)staying with Mrs le Couteur when she was bedridden for a period;
(m)providing transport for Mrs le Couteur after she lost her driver’s licence “towards the end of 2005”;
(n)not taking up a full-time position in order to be available to support Mrs le Couteur and take her to medical appointments and attend to her other needs;
(o)taking Mrs le Couteur out in her car notwithstanding she was no longer driving;
(p)purchasing the Parnell properties to enable Mrs le Couteur to live independently while adjacent to Juliet and her family;
(q)packing up Mrs le Couteur’s house at Brett Avenue in anticipation of her move to Taurarua Terrace;
(r)renovating 17B Taurarua Terrace to make it suitable for Mrs le Couteur;
(s)providing Mrs le Couteur with love and companionship;
(t)arranging for Mrs le Couteur to be admitted to the Caughey Preston Hospital and rest home when she became unable to live independently;
(u)continuing to visit Mrs le Couteur on Saturdays and Sundays for the eight years she was in Caughey Preston;
(v)buying Mrs le Couteur clothes and blankets, and sewing name labels on to her clothing while she was at Caughey Preston, washing Mrs le Couteur’s garments that could not be put through the rest home laundry service and bringing flowers regularly;
(w)feeding Mrs le Couteur during visits to Caughey Preston;
(x)liaising with the Caughey Preston medical and other staff to discuss and plan Mrs le Couteur’s care; and
(y)maintaining the property and grounds of Mrs le Couteur’s house at 17B Taurarua Terrace.
Howard and Stephen’s Response
[38]Juliet’s claim is opposed by Howard and Stephen who do not accept:
(a)Mrs le Couteur made any promise to bequeath her house to Juliet; or that
(b)Juliet provided qualifying work or services in terms of the Act, but rather provided assistance that was entirely consistent with “what is normally expected within a loving family relationship as that enjoyed between Juliet and Mrs le Couteur”.
[39]Howard and Stephen have also questioned whether:
(a)in any event Mrs le Couteur could have had capacity to make any promise in respect of the Parnell properties; and
(b)that in the event that the Court finds that Juliet did provide work and services, the value of such work or services falls far short of the value
of Mrs le Couteur’s final home, and on the contrary Juliet has already received financial assistance from Mrs le Couteur far in excess of the value of any work and services provided, noting in particular that Juliet and Tony appear to have received $15,000 from Mrs le Couteur in December 2007.
Discussion and Analysis
[40] As noted above, for Juliet to succeed in her claim she must establish the existence of a promise made by Mrs le Couteur to reward her for work or services that have been provided. Having considered the evidence carefully, I am not satisfied that any such qualifying promise in terms of s 3(1) of the Act has been made.
[41] First, I am satisfied that neither the bequest of Pupuke Road contained in Mrs le Couteur’s 1991 will nor the 2002 handwritten note/informal amendments to the 1991 will, relied on by Juliet in paragraphs 55-57 of her evidence (see [36] above), constituted any form of general promise that Juliet would be entitled to receive whatever property Mrs le Couteur owned at the date of her death, let alone that such would be provided as a reward for work or services provided by Juliet.
[42] As Mr Steele acknowledged in closing submissions on behalf of Juliet, it appears clear that the bequest of Pupuke Road, occurring as it did in both Mr and Mrs le Couteur’s wills, was the result of their concern for Juliet following her marriage to Tony, in order that she be provided for in the event of the death of her parents and the failure of her marriage. The fact that Juliet’s marriage to Tony did not fail and indeed has now lasted some 28 years, nor indeed the fact that Tony ultimately enjoyed a good relationship with both Mr and Mrs le Couteur cannot change the nature of the bequest into some kind of promise as a reward for work or services.
[43] Likewise, the 2002 handwritten note and the informal changes to the 1991 will were specifically limited to Brett Avenue, rather than evidencing any general promise of property. As a result even if the handwritten amendments to Mrs le Couteur’s 1991 will had been valid, that gift would have adeemed in the same way as Pupuke Road. More fundamentally the authorities are clear that a mere promise to make a
testamentary provision which is not linked with or founded upon services or work is insufficient,5 and in particular a promise made principally out of love and affection does not provide a sufficient nexus to enable a claim to succeed.6
[44] In the absence of being able to rely upon the 1991 will or 2002 handwritten amendments to provide support for a qualifying promise, I am satisfied the evidence otherwise discloses no discernible promise made by Mrs le Couteur, either express or implied, to leave any property she may have held at her death to Juliet as a reward for services provided by Juliet, far less any identifiable promise in relation to 17B Taurarua Terrace or any of the other Parnell properties.
[45] It is difficult to see how it could be otherwise, given it is not at all clear the basis upon which Mrs le Couteur participated in the transaction to acquire the Parnell properties other than it is clear she invested a considerable sum of money, and her interest in all or any of those properties has yet to be confirmed by the executors of her estate. It is simply not clear whether Mrs le Couteur participated as an investor generally in the transaction, as the purchaser of 17B Taurarua Terrace, or as a mixture of both. As Mr Norris confirmed, when he spoke to Mrs le Couteur about the transaction she did not appear at all clear on the basis she was participating, which led to the suggestion to involve Mr Jackson to provide her with independent legal advice.7
[46] Similarly, Tony and Juliet’s letter to Mr Morton of 8 October 2004 states it was intended that Mrs le Couteur would be purchasing 17B Taurarua Terrace, but this was subject to “arrangements being confirmed” in due time.8 There is no evidence that such further arrangements were indeed confirmed, far less with Mrs le Couteur, and on the contrary there was clearly considerable uncertainty on Mr Morton’s part. This is evidenced not only by Mr Jackson’s file note of his conversation with Mr Morton in December 2004,9 which indicated that even after settlement the transaction may be being recast, and Mr Morton’s belated insistence on independent advice being
5 Jones v Public Trustee, above n 1, at 364.
6 See Re Welch, above n 2; 1 Chapman v P HC Wellington CIV-2007-485-1372, 2 July 2009; and
Tombs v Macassey CA174/02, 18 June 2003.
7 See [17] above.
8 See [16] above.
9 See [20] above.
provided to Mrs le Couteur in his letter of April 2005.10 The overall uncertainty raises a very real issue as to what Mrs le Couteur could in fact have promised to Juliet, standing in sharp contrast to the clear articulation of Mrs le Couteur’s wishes in 1991, and even in 2002, in respect of the properties she clearly owned.
[47] Leaving aside whether Mrs le Couteur could have made a promise, neither Juliet nor Tony provides any real detail about any specific promise in respect of any of the Parnell properties. Apart from relying upon the 1991 will and the 2002 handwritten amendments to support the existence of a promise in hindsight, the closest that Juliet comes to identifying a promise was as set out in paragraph 58 of her brief of evidence when she advised:
When we purchased the property on Gladstone Road, my mother told me that as I was going to inherit the property anyway, she had no qualms about the amount she was putting towards the purchase. The proceeds from the sale of the Brett Avenue property went straight towards the purchase of the Gladstone Road property.
[48] Under cross-examination Juliet was asked about Mrs le Couteur’s contribution to the purchase of the Parnell properties, to which she responded:
Q.My friend has discussed the last couple of questions … with the fact that $800,000 was contributed to by your mother for the purchase of the property. How much of that was, $800,000 came from the sale of her Brett Avenue property?
A. Well she achieved 750,000 with the sale.
Q. Yet $800,000 was put in. How did the figure 800,000 come about?
A.You know I can’t actually recall. I think we, we probably looked at the resources we have to contribute towards this purchase, the savings that I had to put towards it, the capacity for my husband to service you know a mortgage, and what resources Mother had. And we probably thought that her property at Brett Avenue would have achieved more than it did actually. But we thought very much as a rehousing exercise for Mother, in the interests of Mother.
Q. And what concerns did she raise with you about putting in an additional sum of money on top of the 750,000?
A.Well we had a very brief conversation about it and she said to me, “Well I’m not worried about this. You’re going to inherit this property anyway, and so you know this is my contribution towards it”.
10 See [21] above.
[49]Similar comments were made by Tony in his own briefs of evidence:
While discussing the finances for the house, Sidney indicated willingness to use her funds from the sale of the Brett Avenue property to purchase her apartment. She said she did not mind putting forward slightly more money as she intended Juliet to inherit her property.
[50] Both Juliet and Tony appeared to suggest that Mrs le Couteur was prepared to invest more than she received for Brett Avenue into the Parnell properties because of her intention to leave one of the Parnell properties to Juliet. This however does not reflect how the transaction came about, given the figure of $800,000 was in fact determined approximately a year before any agreement for sale and purchase was signed in relation to Brett Avenue. This casts doubt on the accuracy of both Juliet and Tony’s respective recollections of the conversation. In any event, even pitched at its highest there is nothing in either Juliet or Tony’s description of the “promise” that would in any way indicate it was made as a reward for work or services provided by Juliet, rather than simply a reflection of the undoubted love and affection that Mrs le Couteur felt for Juliet.
[51] Taken together, the lack of clarity as to what Mrs le Couteur thought she was getting in terms of the Parnell transaction, the exact nature of the transaction and the lack of any detailed evidence to support any sort of promise made by Mrs le Couteur generally, let alone a promise to reward Juliet for “work or services”, means that I cannot be satisfied that any qualifying promise was in fact made. As a result Juliet’s claim cannot succeed.
[52] Given the conclusion I have reached with regard to the lack of any qualifying promise, it is not necessary to make any findings regarding Mrs le Couteur’s capacity at any time, the nature of the work or services provided by Juliet to Mrs le Couteur, or whether the promise of the house would have been reasonable. It is also unnecessary to make any final determination as to whether the relief sought by Juliet could have been granted by the Court given Mrs le Couteur did not own 17B Taurarua Terrace at the date of her death, nor has the estate’s interest in the Parnell transaction as a whole been determined. Despite this, some brief observations with regard to Juliet’s claim to have provided work or services within the definition of s 3(1) of the Act are appropriate.
[53] It is clear from the evidence that has been presented that Juliet had an exceptionally good relationship with Mrs le Couteur and that as part of that relationship Juliet provided a wide range of support, both practical and emotional. It is likewise clear that the love and support Juliet provided to Mrs le Couteur increased over time as Mrs le Couteur’s mental condition worsened and Juliet clearly continued to provide ongoing support after Mrs le Couteur was admitted to the Caughey Preston rest home, albeit on a reduced basis. It is equally clear, evidenced by Mrs le Couteur’s diary entries, that she greatly appreciated her relationship with Juliet and the ongoing support that she provided.
[54] Despite this, had it been necessary to do so I would have concluded there was insufficient detail provided by Juliet and Tony in their evidence to suggest that the types of services provided were other than would have been expected in any loving family relationship. In particular there is nothing in the types of services, provided at
[37] above, that would be unexpected in any family relationship. Whether in this case Juliet could be seen to have gone further than a normal family relationship is unclear given the lack of precision in the descriptions provided by Juliet. The lack of detail is particularly relevant with regard to any support provided up to at least 2002, when Mrs le Couteur was living independently without any clear problems, and I note that even after moving into 17B Taurarua Terrace Mrs le Couteur retained a large degree of independence notwithstanding her diagnosis of Alzheimer’s. I am therefore not satisfied that the ongoing care and support provided by Juliet was, in the circumstances of her relationship with Mrs le Couteur, work or services for the purposes of the Act, still less that there was any sufficient nexus with any promise by Mrs le Couteur to reward Juliet.
[55] Finally, it is important to record that having heard the evidence presented, I have no doubt that both Howard and Stephen loved and supported their mother as much as they were able. There is however no dispute that Howard and Stephen were not able to provide support to the same extent as provided by Juliet, largely because Howard was and is based in Christchurch and for a significant period Stephen was based in England. These proceedings are not and were never about the relative contributions made by Juliet, Howard and/or Stephen to Mrs le Couteur’s care and
support, but whether there was a promise to reward Juliet for work or services provided to Mrs le Couteur, and any difference in relative contributions are therefore irrelevant.
Decision
[56]Juliet’s claim is dismissed.
[57] The interested parties, Howard and Stephen, are entitled to costs on a 2B basis. In the event that there are any outstanding issues with regards to costs I will determine the issue following the filing of memoranda of no more than five pages per party.
Powell J
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