Emeny v Mattsen - [2024] NZHC 291

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2023-442-038

[2024] NZHC 291

UNDER The Family Protection Act 1955

IN THE MATTER

of the Estate of PHILLIP JOHN EMENY

BETWEEN

MURRAY PHILLIP EMENY

Appellant

AND

JEANETTE ROSALIE MATTSEN

First Respondent

AND

JEANETTE ROSALIE MATTSEN

Second Respondent

Hearing: 21 February 2024

Appearances:

P J Bellamy for Appellant

A M Halloran for Respondents

Judgment:

23 February 2024

JUDGMENT OF GRICE J

(Appeal)

Introduction

[1] This is an appeal against a decision of the Family Court regarding a claim made under the Family Protection Act 1955 (the Act) in relation to the estate of Phillip Emeny (the testator). The testator’s son, Murray Emeny (the appellant) contends that the specific bequest of $50,000 awarded to him by Judge Russell in the Family Court ought to be increased to $75,000. The appellant also submits that the Judge erred in decreasing the provision made to Murray in the residue of the estate to 10 per cent, from 15 per cent.

EMENY v MATTSEN [2024] NZHC 291 [23 February 2024]

Background

[2] Phillip Emeny died on 17 March 2021. He was predeceased by his wife Dorothy, and is survived by his three children Murray, Jeanette and Dianne, as well as seven grandchildren aged between 13 and 48 years.

[3] The claim in question was brought by Murray, who sought further provision from his father’s estate under s 4 of the Act.

[4] Murray has been in poor health for a number of years and has been unable to work. His relationship with his father had also deteriorated in the years prior to the testator’s death. Murray’s claim in the Family Court was successful in that the Judge found that the testator had not recognised his moral obligation to provide support for his son, given Murray’s medical needs. The Judge therefore directed a specific bequest of $50,000 to Murray before division of the residue. Therefore, the amount available to the residuary beneficiaries was reduced by $50,000.

[5] In the course of argument, counsel agreed that this was the effect of the orders of the Family Court. The effect on Murray’s share of the estate was that he received approximately (depending on the final amount of the residue following sale of the house and costs) $42,500 extra than he had taken under the will, that being the $50,000 bequest and the 15% residuary share. The other residuary beneficiaries bore the total deduction of $42,500 approximately based on the figures adopted by the Family Court.

The will

[6]The testator’s last will is dated 20 June 2014. It provides:1

(a)Jeanette is named as sole trustee and executor.

(b)Jeanette receives as specific bequests the money held in the testator’s sole name, the contents of his workshop including machinery, his musical instruments, any motor vehicle which he owns and all of his personal chattels.

1 Summary adopted from Emeny v Mattsen [2023] NZFC 7477 [Family Court decision].

(c)The residue of the estate, after payment of…

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 Emeny v Mattsen

Details

AGLC: Emeny v Mattsen [2024] NZHC 291
Case: [2024] NZHC 291
Decision Date: 23 February 2024

CaseChat Overview and Summary

Emeny v Mattsen is an appeal brought by Murray Phillip Emeny, the son of the deceased Phillip Emeny, against the Family Court’s decision regarding a claim made under the Family Protection Act 1955 in relation to his father’s estate. Murray, who is in poor health and unable to work, sought further provision from his father’s estate, which was ultimately awarded a specific bequest of $50,000 by Judge Russell. Murray contends that this amount should be increased to $75,000 and that the provision made to him in the residue of the estate should not have been decreased to 10 per cent from 15 per cent. The appeal was heard by Grice J in the High Court of New Zealand Nelson Registry.

The central issue in the appeal was the quantum of the specific bequest awarded to Murray by the Family Court. Murray argued that the $50,000 bequest was insufficient to address his poor health and economic difficulties, and that the figure of 10 per cent attributed to the testator’s obligation to support Murray was also insufficient. He further argued that the Judge failed to consider the fact that the will of his mother, Mrs Emeny, would have apportioned the residue of the estate in equal shares to the three children. The respondents, Jeanette and Dianne, contended that the appeal was misconceived and that the award of $50,000 was appropriate, given Murray’s financial circumstances.

Grice J dismissed the appeal, holding that the Judge’s decision was not plainly wrong. The Judge had preserved Murray’s entitlement to 15 per cent of the residue as set out under the will, while awarding an additional bequest of $50,000. The Judge had carefully reviewed Murray’s circumstances and concluded that the $50,000 bequest was sufficient to meet the obligation on the testator. The appeal did not establish a material error in the Judge’s reasoning or an error of law.

The final orders of the court were that the appeal was dismissed, and any application for costs should be made by memorandum within a specified timeframe.

Orders