Hamilton v Kirwan - [2020] NZHC 2149

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000322

[2020] NZHC 2149

UNDER

AND
the Family Protection Act 1955 and the Law Reform (Testamentary Promises) Act 1949

IN THE MATTER OF

AND

The Estate of DESMOND WAYNE HETHERINGTON

IN THE MATTER OF

the COVE ROAD TRUST

BETWEEN

KEELEY FLEUR HAMILTON

Plaintiff

AND

DESMOND MICHAEL KIRWAN

First Defendant

CRAIG DESMOND HETHERINGTON

Second Defendant

Hearing:
25 – 29 May 2020 (Further submissions received 5, 12, 16, 23, 24

and 25 June 2020)

Appearances:

L Kearns and J S Langston for the Plaintiff P Moodley for the First Defendant

G C Jenkin for the Second Defendant

Judgment:

24 August 2020

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Monday, 24 August 2020 at 3:30 pm pursuant to r 11.5 of the High Court Rules.

HAMILTON v KIRWAN & ANOR [2020] NZHC 2149 [24 August 2020]

Introduction

[1] The plaintiff, Keeley Fleur Hamilton, is contesting the lack of sufficient provision for her in the will of her late father, Desmond Wayne Hetherington (the deceased), dated 30 May 2016, and her exclusion as a beneficiary of the Cove Road Trust (the Trust), which the deceased settled on the same day.

[2] In about 1984, the deceased purchased, in his own name, a 58.9450 hectare rural block of land at 1758 Cove Road, Mangawhai (the property). There is a small bach on the top of the property which the deceased used as a holiday home. Ms Hamilton has lived on the property since 1997, initially in the deceased’s bach. Since about 2000, she and her partners have made improvements to the property, including building a dwelling house near the bach and three cabins near the road at the bottom of the property, from which she operates a small hairdressing business and garden centre. Ms Hamilton says she only expended money to build the house and cabins and to make other improvements to the property on assurances from the deceased that he would leave her a one-third share in the property when he died.

[3] In an earlier will dated 1 September 2015, the deceased had directed that after his death the property was to be transferred to Ms Hamilton and her two brothers as tenants in common in equal shares. He also directed that his residuary estate be divided equally between the three children.

[4] However, eight months later, on 30 May 2016, the deceased settled the Trust, under which Ms Hamilton’s two brothers (but not Ms Hamilton) were beneficiaries together with the deceased’s grandchildren. The deceased transferred the property to the Trust thereby taking it out of his estate. In a will, also dated 30 May 2016, the deceased…

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 Hamilton v Kirwan

Details

AGLC: Hamilton v Kirwan [2020] NZHC 2149
Case: [2020] NZHC 2149
Decision Date: 24 August 2020

CaseChat Overview and Summary

This case involved a dispute over the estate of the deceased, Desmond Wayne Hetherington, and the distribution of his property. The plaintiff, Keeley Fleur Hamilton, one of the deceased's adopted children, contested the lack of sufficient provision for her in the will of her late father and her exclusion as a beneficiary of the Cove Road Trust, which the deceased had settled on the same day as his will. The defendants were Desmond Michael Kirwan, the executor of the deceased's will, and Craig Desmond Hetherington, the sole trustee of the Trust.

The legal issues the court was required to decide included whether the plaintiff had a valid claim for proprietary estoppel, constructive trust, breach of moral duty, and testamentary promise, as well as whether the executor had failed to account for the estate and whether it was expedient to replace the trustee.

The court found that the deceased was estopped from dealing with the property contrary to the plaintiff's equitable interest, which arose because the deceased had created the expectation on her part that on his death she would inherit the property equally with her brothers. However, the claims for constructive trust, undue influence, breach of moral duty, and testamentary promise were dismissed. The court also found that the executor had not failed to account for the estate, and there was no need to replace the trustee.

As a result, the court ordered that the property be transferred to the three children as tenants in common in equal shares, with a third share vesting in the plaintiff. The plaintiff was successful on the first cause of action, and costs normally follow the event. If the parties cannot agree on the costs, they are to file memoranda within a month of the date of this judgment.

Orders