Gibson v Makgill - [2024] NZHC 781

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV 2022-419-256

[2024] NZHC 781

BETWEEN
LYNETTE JOCELYN GIBSON

Applicant

AND

SIMON REDDING MAKGILL in his

capacity as Executor and Trustee of The Estate of Lewis Henry Wait Respondent

ROBERT ERNEST WAIT, WENDY

THERESE WAIT and GAYLENE ANNE CHRISTIE WAIT

Adult Interested Parties

Hearing (by VMR): 9 October 2023

Appearances:

P Dale KC for the applicant H Hui for the respondent

S Moore for the interested parties R E Wait and W T Wait

Judgment:

12 April 2024

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 12 April 2024 at 10.00 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

GIBSON v MAKGILL [2024] NZHC 781 [12 April 2024]

[1] Claims under the Family Protection Act 1955 (the FPA) ordinarily have to be made within 12 months of the grant of administration, though the Court can extend the time for making a claim. The applicant wishes to make an FPA claim against the estate of her late father, Lewis Wait. Mr Wait died in March 1976 and probate of his will was granted in July 1976. The applicant should therefore have made her FPA claim by July 1977. She did not do so then, and still had not done so by August 2022. In that month, she applied for an order extending – by some 45 years – the time for her to make an FPA claim.

Background

[2] Lewis Wait was married to Nellie Wait. Mr and Mrs Wait had three children. It will be convenient if I refer to the children by their first names. They are Gaylene (who was 73 at the time of the hearing), the applicant Lynette (72) and Robert (68).

[3] Mr Wait died on 8 March 1976, aged 55, having lost a battle with cancer. The bulk of his estate consisted of a half-share in a farm in Cambridge. The other half- share in the farm was owned by Mrs Wait.

[4] Mr Wait had become ill with cancer while Robert was at university. Robert put his studies on hold to assist Mr Wait with running the farm. Robert then gave his studies up altogether to take over the running of the farm shortly before Mr Wait died.

[5] Mr Wait made a will dated 4 September 1975, under which he left Mrs Wait a life interest in his estate, with the estate to pass (on Mrs Wait’s death) to Robert, subject to Robert paying to Gaylene and Lynette, in equal shares, a sum equal to one- sixth of the value of the estate as at the date of Mrs Wait’s death. By a codicil dated 27 January 1976, Mr Wait changed the date for valuing the one-sixth share of the estate from the date of Mrs Wait’s death to the date of Mr Wait’s death.

[6] During his lifetime, Mr Wait settled the LH Wait Family Trust.…

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 Gibson v Makgill

Details

AGLC: Gibson v Makgill [2024] NZHC 781
Case: [2024] NZHC 781
Decision Date: 12 April 2024

CaseChat Overview and Summary

The case of Gibson v Makgill involved Lynette Jocelyn Gibson's application to extend the time limit for making a claim under the Family Protection Act 1955 against the estate of her late father, Lewis Henry Wait. The estate's administration began in July 1976, and any claim should have been filed by July 1977. Gibson filed her application in August 2022, seeking a 45-year extension. The primary legal issues centered around whether the court should exercise its discretion under section 9 of the Family Protection Act to extend the time for Gibson to make her claim, despite the significant delay. The court considered various factors, including the length of the delay, the extent to which it was excusable, the strength of Gibson's proposed claim, and the potential prejudice to beneficiaries.

The court found that Gibson's delay in making her claim was inexcusable as she had known since her father's death in 1976 about the inequality in her father's will and had chosen to rely on an alleged promise of future equalization. Gibson's proposed claim, though not entirely without merit, appeared weak as it was unclear whether her father's actions constituted a breach of moral duty. Furthermore, granting an extension would significantly prejudice Robert, the primary beneficiary under the will, who had ordered his life around the estate's distribution and faced substantial evidential challenges in opposing the claim due to the passage of time. Therefore, the court declined Gibson's application for an extension of time.

Orders