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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-1790
[2022] NZHC 506
IN THE MATTER OF The Family Protection Act 1955 BETWEEN
ANDREW ROBERT GILCHRIST as
litigation guardians for “M” Appellant
AND
DAVID ANTHONY LYON “E”
“S”
as the executors and trustees of the DECEASED’S ESTATE
Respondents
Hearing: 16 February 2022 Appearances:
W Templeton and R Marsich for the Appellant P Rice for the Respondent
Judgment:
18 March 2022
JUDGMENT OF HARVEY J
This judgment was delivered by me on 18 March 2022 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date: ………………………….
Solicitors / Counsel:
Mr WGC Templeton, Barrister, Auckland
Mr M Bhanabhai, (appellant’s instructing solicitor) Dyer Whitechurch, Auckland Mr P Rice, Solicitor, Auckland
GILCHRIST v LYON [2022] NZHC 506 [18 March 2022]
Introduction
[1] The deceased and his wife “E” had three sons, twin boys “J” and “A” born in 1967, and “P” who arrived in 1971. A and his former wife had a daughter, “M”, a minor. He is currently an undischarged bankrupt. P married his wife and they had two daughters, also minors. P died unexpectedly in 2018. It is said that J, who has no children, has been estranged from the family for many years and lives in the United States. On 18 February 2019, the deceased executed a will. He died on 7 April 2019 and is survived by E. As at 31 March 2020, his estate was worth some $1.5 million. The estate’s major asset is a half-share in a commercial property earning $48,000 per annum for each of the owners.
[2] Prior to these events, on 31 March 1995, the deceased settled the Laurie Trust with the first trustees being himself and E along with David Lyon, a retired lawyer. The trust deed provides that J and E and their sons are final beneficiaries while all their grandchildren, and their sons’ spouses, are to be discretionary beneficiaries. The trust’s net assets were $1,950,728.26 as at 31 March 2020.
[3] On 25 March 2020, M, through her litigation guardian, Mr Gilchrist, commenced proceedings in the Family Court at Auckland for provision from the deceased’s estate, for her “proper maintenance and support.” In a judgment dated 25 August 2021, Judge T H Druce dismissed the claim.1
The appeal
[4] Mr Gilchrist now appeals that decision to this Court on three principal grounds. First, the appellant argued, given the Judge’s findings that the deceased knew of A’s precarious financial circumstances, a wise and just testator would have made provision for M, to be held in a separate trust for her sole benefit. Second, that the Judge erroneously found that the “risks” posed to M’s inheritance by her father’s bankruptcy
1 Gilchrist v Lyon [2021] NZFC 8409.
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