Dwight v Ross - [2018] NZHC 1764

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2017-463-109

[2018] NZHC 1764

UNDER the Law Reform (Testamentary Promises) Act 1949 and the Senior Courts Act 2016

IN THE MATTER

of an appeal against the decision of the Family Court at Rotorua

BETWEEN

HAROLD TERRANCE DWIGHT being the

sole executor of the Estate of MAUREEN ANN DWIGHT

Appellant

AND

SARAH ROSS

Respondent

Hearing: 13 March 2018

Appearances:

T Mounsey for the Appellant R Gregory for the Respondent

Judgment:

17 July 2018

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 17 July 2018 at 2:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Counsel / Solicitors:
Mr T Mounsey, Malcolm Mounsey Clarke, Solicitors, Taupo Ms R Gregory, Barrister, Auckland

DWIGHT v ROSS [2018] NZHC 1764 [17 July 2018]

[1] This is an appeal by the executor of an estate against a decision of Judge J F Munro in the Family Court allowing a claim under the Law Reform (Testamentary Promises) Act 1949 (the Act).1

Background

[2] The claim was brought by the respondent, Sarah Ross (Sarah), against the executor of the estate of Maureen Dwight (Maureen). The executor is the appellant, Harold Terrance Dwight (Terry).

[3] Maureen was in a 30 years long de facto relationship with Sarah’s father, Phillip New (Phillip). It began in the United Kingdom around 1975 and ended when Phillip died in New Zealand in 2004. Sarah lived with her father and Maureen, in the United Kingdom, from the outset of the relationship, when she was 9 years old.

[4] In about 1991 Sarah moved to New Zealand where she married and had two children. Maureen and Phillip remained in the United Kingdom, where both of them were working. In 2003, after they had retired, Maureen and Phillip moved to New Zealand to be closer to Sarah and her children. They bought a home in Taupo. Phillip died shortly after their arrival in New Zealand.

[5] By his will, Phillip left his entire estate to Maureen. Sarah did not contest her father’s will. This formed part of the basis for her claim under the Act. Sarah said that she did not contest her father’s will because of promises made by Maureen, both before and after Phillip died, that provision would be made for Sarah in Maureen’s will. Sarah said that her father had also given her assurances that Maureen would make provision for her in her will.

[6] Sarah’s claim was also founded on a further claim that Maureen had promised to make testamentary provision for Sarah in return for assistance she received from Sarah after Phillip died.2

1 Ross v Dwight [2017] NZFC 7160 (Family Court judgment).
2 The nature of some of this assistance is described below, at [41]-[42].

[7] In 2004, Sarah and her husband separated. Sarah moved back to the United Kingdom with her two children.

[8] Maureen remained in New Zealand after Phillip died,…

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 Dwight v Ross

Details

AGLC: Dwight v Ross [2018] NZHC 1764
Case: [2018] NZHC 1764
Decision Date: 17 July 2018

CaseChat Overview and Summary

In Dwight v Ross, the High Court of New Zealand dismissed an appeal brought by the executor of Maureen Dwight's estate against a Family Court decision allowing a claim under the Law Reform (Testamentary Promises) Act 1949. Sarah Ross, the daughter of Phillip New, had brought a claim against Maureen Dwight, who was in a de facto relationship with Phillip for 30 years, alleging that Maureen had promised to make testamentary provision for her in return for services rendered. The Family Court found in Sarah's favour, awarding her 25% of the estate's net value, which amounted to $150,000. The executor of Maureen's estate appealed the decision on six grounds, but the High Court found no error in the Family Court's decision. The appeal was dismissed, and Sarah was awarded costs from the estate.

Orders