George v Blomfield - [2016] NZHC 3099

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2016-419-000212 [2016] NZHC 3099

IN THE MATTER
of the Estate of ALFRED ERNEST

GEORGE deceased

BETWEEN

PETER WILLIAM GEORGE Appellant

AND

PAULINE JUNE BLOMFIELD AND ALAN GRAEME BLOMFIELD Respondents

Hearing: 15 November 2016

Appearances:

S A McKenna for Appellant
No appearance for Respondents
M D Branch and W J Scotter for Interested Parties

Judgment:

16 December 2016

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 16 December 2016 at 2.30 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

GEORGE v BLOMFIELD [2016] NZHC 3099 [16 December 2016]

Introduction

[1] Following the death of their father, Alfred Ernest George, Peter George and his brother, Alan George, brought claims under the Family Protection Act 1955. Alan died in 2015 and his executor negotiated a settlement of his claim with the executors. Peter continued his claim.

[2] Judge Riddell dismissed the claim.1 Peter George appeals that decision. He asserts that the Judge made errors in:

(a) failing to treat debts forgiven in the will as assets of the estate; and

(b)wrongly treating his historical conduct and the fact that he had previously received a distribution from a family trust as relevant to the question of whether Mr George had breached his moral duty to him.

Background to the claim

[3] Mr George was a widower when he died in 2012. He and his late wife, Avice, had four children; Alan (born 1945), Colin (born 1948), Peter (born 1951) and Pauline (born 1954). Pauline subsequently married Alan Blomfield.

[4] Mr George was an astute property buyer and developer. Sometime in the

1970s he established a family trust, the A E George Family Trust, which purchased land in Hamilton. That trust was wound up in the 1980s and the four children each received a substantial distribution. At some later time a second trust was formed, the A E George No 2 Trust.2

[5] Mrs George died in 1986 and the Judge found that Pauline provided very substantial support and care for her father until he died. This fact is reflected in the clause of Mr George’s will explaining why Pauline was to inherit more than her brothers:

In particular my daughter PAULINE has been a considerable source of comfort and friendship to me. This is not the case as far as my three sons are concerned who for reasons of their own have chosen to have very little

1 George v Blomfield [2016] NZFC 4137.
2 In the evidence and in the decision of the Family Court that trust is sometimes referred to
(wrongly) as the A E George (No 2) Family Trust.

contact with me and my late wife over the years. Although I anticipate that PAULINE and her family will receive a greater share from my estate than my three sons, my sons will receive an adequate share.

[6] The net assets of the estate appear, from the various affidavits, to total about

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 George v Blomfield

Details

AGLC: George v Blomfield [2016] NZHC 3099
Case: [2016] NZHC 3099
Decision Date: 16 December 2016

CaseChat Overview and Summary

Peter William George appeals against the decision of Judge Riddell, who dismissed his claim under the Family Protection Act 1955. Peter claims that his father, Alfred Ernest George, breached his moral duty to provide for him. The appeal concerns the way Judge Riddell treated the size of the estate for the purposes of assessing the breach of moral duty. The appeal also concerns whether the Judge was correct in considering Peter's prior conduct and a distribution he received from a family trust as relevant to the assessment of the moral duty. Judge Riddell dismissed Peter's claim. She found that there was no evidence that Peter's sister, Pauline, had received any benefit from the forgiveness of debt and that the imbalance in the residuary estate was not significant. She also took into account Peter's refusal to accept his father's offer of accommodation and his animosity towards Pauline. The appeal is allowed. The decision of Judge Riddell is set aside and the case is remitted to the Family Court for rehearing. The Judge erred in excluding the forgiven loans from the estate for the purposes of the family protection claim. The correct approach is that all forgiven debts are assets of the estate. The Judge also erred in considering Peter's prior conduct and the distribution from the family trust as relevant to the assessment of the moral duty. However, the past conduct of an adult child is not irrelevant in the context of a family protection claim. The nature of the relationship between parent and child can be a significant factor in determining the nature of the moral duty owed and the existence and extent of any breach of that duty. The Judge was correct to take into account Peter's refusal to accept his father's offer of accommodation and his animosity towards Pauline. However, the Judge erred in finding that had Peter accepted the offer of accommodation he would have been in a more secure financial position today. This finding is speculative and not supported by any evidence.

Orders