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Dally v Dowden

Dally v Dowden

Case [2020] NZHC 2670 12 October 2020

Moral Duty

Adequate Provision

Proper Maintenance and Support

Testamentary Intentions

Close Relationship

Family Law

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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2020-419-18

[2020] NZHC 2670

UNDER the Family Protection Act 1955

IN THE MATTER

of the estate of John Thomas Dally

BETWEEN

CASSANDRA DALLY

First plaintiff

VALMAY O’BRIEN
Second plaintiff

AND

ANTHONY SIMON DOWDEN

First defendant

DONNA HARRIS

Second defendant

Hearing: 8 October 2020

Appearances:

S A McKenna and A Osama for the plaintiffs C M Earl for the first defendant

D M O’Neill for the second defendant

Judgment:

12 October 2020

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 12 October 2020 at 3.00pm.
Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:
C M Earl, Barrister, Hamilton
D M O’Neill, Barrister, Hamilton McKenna King, Hamilton

DALLY v DOWDEN [2020] NZHC 2670 [12 October 2020]

[1] John Dally died on 21 May 2019. His will left his estate to those he identified effectively as his children: half to the first defendant, and the other half divided in thirds; one each for the first defendant and the second defendant, and the last to be divided equally between his other three children (including the plaintiffs).

[2] Under s 4 of the Family Protection Act 1955, the plaintiffs now seek provision be made out of the estate for their proper maintenance and support. I mean no disrespect by referring to all family members by their first names.

Background

[3] John was married to Valerie Dally. They had five children: Cassandra (the first plaintiff), Valmay (the second plaintiff), Donna (the second defendant), Nigel (who takes no part in this proceeding), and Grant (who died in 1990). John and Valerie separated and divorced in the early to mid-1970s.

[4] John later remarried Naomi Dowden. Naomi had a son, Anthony (the first defendant), from a previous relationship. Anthony says the three of them made “a great family”. They lived initially on Auckland’s North Shore in properties jointly owned by Naomi and her mother. In the late 1980s, they moved to Coromandel to live in another property also jointly owned by Naomi and her mother. From its sale proceeds, a further property was acquired at Te Kouma, to which John’s name was added as proprietor. Naomi acquired her mother’s share on her death; John acquired Naomi’s share on her death. Anthony maintained a close relationship with John, even while living overseas.

[5] After their separation, John had no contact with any of his children with Valerie until the 1990s, when he responded to Donna’s provision of her phone number to his sister. Donna says they then struck up a close relationship.

[6] The only substantial asset of John’s estate is the Te Kouma property. It formally was valued at some $1.2 million in September 2019, affirmed by a comparable August 2020 real estate agency valuation, but is acknowledged also to require substantial structural works as may reduce its achievable sale price below $1 million unless the

work is undertaken. The property secures a…

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 Dally v Dowden

Details

AGLC: Dally v Dowden [2020] NZHC 2670
Case: [2020] NZHC 2670
Decision Date: 12 October 2020

CaseChat Overview and Summary

Cassandra Dally and Valmay O'Brien, the daughters of John Dally, sought to have his will set aside under the Family Protection Act 1955, on the basis that he failed to make adequate provision for their proper maintenance and support. John's estate was valued at approximately $1.2 million, and the principal asset was a property at Te Kouma. John's will left half of his estate to his stepson, Anthony Simon Dowden, and the remaining half divided into thirds, with one third to Donna Harris, and the last third to be divided equally between the three other children of John and his former wife, Valerie Dally. The plaintiffs argued that John had breached his moral duty to them by failing to make adequate provision for their maintenance and support.

The court considered whether John had breached his moral duty to the plaintiffs, and whether there had been a breach of the moral duty, the amount to be provided was not to be measured solely by the need for maintenance. The court found that John had made explicit gifts to the plaintiffs in his will, recognising them as part of his family and acknowledging the close relationships he had with them. The court also found that the plaintiffs had not established a breach of the moral duty, and therefore had no foundation to obtain the court's resettlement of the estate's presents. The plaintiffs' claim was dismissed.

The court also considered evidentiary objections raised by the plaintiffs regarding the admissibility of hearsay statements made by John. The court found that the statements were admissible, and that there was nothing in the circumstances to diminish reasonable assurance of their reliability. However, the court found that the statements did not materially advance the determination of the issue of whether John had failed to make adequate provision for the plaintiffs' proper maintenance and support.

The plaintiffs' claim was dismissed, and the court reserved costs for determination on short memoranda of no more than five pages. The court's preliminary view was that costs should lie where they fell, but if the parties could not agree, the defendants were to file and serve their memoranda within ten working days of the date of the judgment, with any response and reply to be filed within five working day intervals after service.

Orders