Fry v Fry - [2014] NZHC 2256

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-001168 [2014] NZHC 2256

BETWEEN
JASON LAWRENCE FRY

Appellant

AND

CAROL MIZPAH FRY Respondent

Hearing: 26 August 2014

Appearances:

Nicola Penman-Chambers for the Appellant
Brian Carter for the Respondent in a personal capacity
Kevin Muir for the Respondent in a capacity as executor

Judgment:

17 September 2014

RESERVED JUDGMENT OF MOORE J

This judgment was delivered by on 17 September 2014 at 2:00pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

FRY v FRY [2014] NZHC 2256 [17 September 2014]

Introduction

[1] The appellant, Jason Fry, is the son of Lawrence (“Laurie”) Fry from Laurie’s first marriage. The respondent, Carol, is Laurie’s second wife. Jason is now aged
41. He has two sisters who have elected not to take part in these proceedings. Laurie’s first marriage ended in the mid-1980’s and was dissolved in 1985. In December that year Laurie and Carol began living together.

[2] The following year Carol purchased what would be the family home at 2-24

Gladstone Road, Parnell. She did so in her own name using her own money. There were no borrowings. There was no contribution from Laurie. The home was never registered as a joint family home.1

[3] Laurie and Carol established a company Unique Fabrics Limited, which imports high end furnishing fabric. The start up capital for the company was provided by Carol when she sold her share portfolio. Laurie and Carol took equal shares in the company and operated the company together, effectively as an incorporated partnership. On 23 March 1989 Carol and Laurie married.

[4] Jason started working for Unique Fabrics in his late teens in the early 1990’s. In 1995, whilst in his early 20s, he worked for the company in Melbourne before leaving to travel overseas. He returned to New Zealand and recommenced employment with Unique Fabrics in May 2006. He was appointed national sales manager in July 2006 and was in that role when his father died in April 2009 aged
64. About three and a half years later Jason had a serious falling out with his stepmother, Carol, and he left Unique Fabrics. At the time of his departure he was on a salary of $90,000. Since that time he and his stepmother have been estranged.

[5] Between March 1987 and November 2007 Laurie made a number of wills. On 12 November 2007 he made his last will. As with previous wills he appointed Carol as his executor and trustee. Also, consistent with previous testamentary
iterations, he left the whole of his estate to her with the provision, amongst others,

1 The home augmented the size of the estate following concessions by Carol that 50% of the net value of the Gladstone Road properties should be included as per Fry v Fry HC Auckland CIV-
2011-404-1229, 26 May 2011.

that if Carol did not survive him the residue of the estate was to be divided into two equal parts; one part divided between…

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 Fry v Fry

Details

AGLC: Fry v Fry [2014] NZHC 2256
Case: [2014] NZHC 2256
Decision Date: 17 September 2014

CaseChat Overview and Summary

Fry v Fry involved the appellant, Jason Lawrence Fry, contesting the adequacy of the provisions made for him in his deceased father, Laurie Fry’s, will. Jason’s stepmother and the respondent, Carol Mizpah Fry, was the sole beneficiary of Laurie’s estate. The central issue was whether Laurie had fulfilled his moral duty to provide for his children by relying on Carol to provide for them in her will. The court considered the nature of the relationship between Laurie and Jason, the provisions in Laurie’s will, and the extent of Carol’s commitment to provide for Jason. The court held that while Laurie had a moral duty to provide for Jason, the reliance on Carol to do so did not sufficiently discharge that duty due to the uncertainty and potential for Carol to alter her will. Consequently, the court awarded Jason $175,000 from his father’s estate to recognise his relationship and contributions to the family business.

The court examined the principles of moral duty under the Family Protection Act 1955 and determined that Laurie had indeed a moral duty towards Jason based on their close familial and professional relationship. The court further analysed the nature of the commitment Carol had made to provide for Jason in her will. The court concluded that while Carol’s current will included a provision for Jason, the uncertainty of her future intentions and the deteriorating relationship between Carol and Jason meant that Laurie’s moral duty had not been met. The court emphasised the need to balance Jason’s recognition and support against the interests of Carol and the business’s future viability. The court also noted the absence of financial need on Jason’s part and the potential for a “clean break” between the parties.

Orders