Farquharson v Farquharson - [2021] NZHC 222

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2020-463-000035

[2020] NZHC 222

IN THE MATTER Of The Family Protection Act 1955

BETWEEN

DAVID KAHAWAI FARQUHARSON

Appellant

AND

OPAL ADA MARIE FARQUHARSON AS ADMINISTRATOR IN THE ESTATE OF IAN CHARLES FARQUHARSON

Respondent

Hearing: 28 September 2020

Appearances:

J R Hosking for Appellant R D Clark for Respondent

Judgment:

19 February 2021

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 19 February 2021 at 2:30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Anderson Creagh Lai, Auckland Lewis Lawyers, Cambridge.

FARQUHARSON v FARQUHARSON [2020] NZHC 222 [19 February 2021]

Introduction

[1] This is an appeal by David Farquharson (the appellant) from a decision of Judge J F Munro delivered in the Family Court at Rotorua on 19 February 2020 in which her Honour determined his application under the Family Protection Act 1955 (the Act) for provision from the estate of his late father Ian Charles Farquharson (Ian) who died on 2 June 2017.1

[2] By his Will dated 30 March 2005, Ian left the whole of his estate to his former wife Opal Ada Marie Farquharson (Opal), who is the appellant’s mother, and the sole executor and trustee of Ian’s Will.

[3] The appellant (who is 45 years’ old) is Ian and Opal’s only son. He claims that his late father failed to discharge his moral duty him by failing to make any provision for his proper maintenance and support for him his Will.

[4] Judge Munro found that Ian had not breached his moral duty to the appellant to provide him with financial maintenance, but considered that as he was Ian’s only child, “a modest award is appropriate to recognise his place in the family”, which she determined to be 10 per cent of the value of Ian’s estate. Finding the value of Ian’s estate to be $288,682 and the appellant’s notional entitlement to be $28,868, the Judge then deducted $22,912 to allow for the value of a motor vehicle and a sum of cash already received by the appellant from his father, and made an award in his favour in the sum of $6000 to be paid to him from the estate.2

[5] The appellant appeals saying that the Judge’s award is “niggardly” and insufficient to remedy Ian’s failure to discharge the moral duty he owed. He says that the Judge erred in her determination of his claim and that an appropriate award would be approximately 46 per cent of the value of the estate and equate to the cash sum of
$207,100 held by the estate as at the date of the hearing of the appeal.

[6] Opal disputes the substance of the appeal and says that Ian did not breach his moral duty to the appellant by not making provision for him in his Will and she

1 Farquharson v Farquharson [2020] NZFC 1103.
2 At [23].

supports the…

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 Farquharson v Farquharson

Details

AGLC: Farquharson v Farquharson [2020] NZHC 222
Case: [2021] NZHC 222
Decision Date: 19 February 2021

CaseChat Overview and Summary

The case of Farquharson v Farquharson was an appeal by David Farquharson against a decision made by the Family Court regarding his application under the Family Protection Act 1955 for financial provision from the estate of his late father, Ian Charles Farquharson. The primary issue on appeal was whether Ian had a moral duty to provide for David's maintenance and support and, if so, whether the Family Court judge had erred in determining the appropriate award. The appeal also raised the question of the correct valuation of Ian's estate.

The Court found that Ian did breach his moral duty to David by not making adequate provision for him in his will. The Court held that Ian's moral duty to David was not extinguished by the division of property and separation from David's mother, Opal. The Court noted that David had no significant assets, was in a poor financial situation, and had demonstrated his affection for his father by caring for him in his final months. The Court concluded that the minimum required to discharge Ian's moral duty was an award of approximately half the value of the estate. The Court also noted that Opal's continued occupation of the Walnut Place property should not be disturbed.

The Court ordered that David be paid the sum of $200,000 from Ian's estate, and that he retain ownership of the "Great Wall" motor vehicle valued at $13,500 and electronic equipment valued at $2,500, which he was already in possession of. The total value of this award was $216,000, which was approximately 46% of the total value of the estate. The appellant was entitled to costs and reasonable disbursements to be paid out of funds held by the estate.

Orders