Gilchrist v Lyon - [2022] NZHC 506

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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.

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 Gilchrist v Lyon

Details

AGLC: Gilchrist v Lyon [2022] NZHC 506
Case: [2022] NZHC 506
Decision Date: 18 March 2022

CaseChat Overview and Summary

The appeal brought by Andrew Robert Gilchrist, as litigation guardians for M, against David Anthony Lyon and others was dismissed by the High Court. The appeal arose from a decision of the Family Court which dismissed M's claim for provision from her grandfather's estate under the Family Protection Act 1955. The appeal was based on the contention that the Family Court had erred in finding that the deceased had not breached his moral duty to M and that specific provision ought to have been made from his estate. The High Court found that there was no breach of moral duty by the deceased and affirmed the Family Court decision. The court considered the deceased's provision for M's education through the Laurie Trust and the prospect of inheritance from other family members. The court held that the deceased had made adequate provision for M's maintenance and support and that there was no breach of moral duty. The appeal was dismissed, and costs were awarded on a 2B basis.

Orders