Harvey v Harvey - [2021] NZHC 3508

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2017-419-295

[2021] NZHC 3508

UNDER the Law Reform (Testamentary Promises) Act 1949

IN THE MATTER

of the estate of MARTIN LEONARD HARVEY

BETWEEN

BRETT LEONARD HARVEY

Plaintiff

AND

PAUL MARTIN HARVEY and CLARK

ROLAND HARVEY as executors of the estate of MARTIN LEONARD HARVEY
Defendants

…/cont

Hearing: On the papers

Counsel:

DRI Gay for Brett Harvey

SWM Piggin for Delwyn Sinclair P J Stevenson for Margaret Harvey

K A Badcock and LAL Badcock for Bryce Harvey A McMillan for Paul Harvey

S C Dench for the Executors of the Estate of Martin Harvey

Judgment:

17 December 2021

JUDGMENT (NO 2) OF GORDON J

This judgment was delivered by me
on 17 December 2021 at 2 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:

HARVEY v HARVEY [2021] NZHC 3508 [17 December 2021]

CIV-2019-419-21

UNDER the Family Protection Act 1955

IN THEMATTER OF the estate of MARTIN LEONARD HARVEY

BETWEEN BRYCE CHARLES HARVEY
Plaintiff

AND PAUL MARTIN HARVEY and CLARK
ROLAND HARVEY as executors of the estate of MARTIN LEONARD HARVEY
Defendants

CIV-2019-419-68

IN THEMATTER OF the estate of MARTIN LEONARD HARVEY

BETWEEN DELWYN MARGARET SINCLAIR
First Plaintiff

ANDDELWYN MARGARET SINCLAIR and MARGARET CHRISTINE HARVEY as
trustees of the Maraetai Trust Second Plaintiffs

AND PAUL MARTIN HARVEY and CLARK
ROLAND HARVEY as executors of the estate of MARTIN LEONARD HARVEY
Defendants

CIV-2019-419-82

IN THEMATTER OF the estate of MARTIN LEONARD HARVEY

BETWEEN PAUL MARTIN HARVEY
Plaintiff (DISCONTINUED)

AND PAUL MARTIN HARVEY and CLARK
ROLAND HARVEY as executors of the estate of MARTIN LEONARD HARVEY
Defendants

…/cont

CIV-2020-419-158

UNDERthe Property (Relationships) Act 1976 and the Family Protection Act 1955

IN THE MATTER of the estate of MARTIN LEONARD HARVEY

BETWEEN MARGARET CHRISTINE HARVEY
Applicant
AND PAUL MARTIN HARVEY and CLARK
ROWLAND HARVEY as executors of the estate of MARTIN LEONARD HARVEY
Respondents

Solicitors:Allen Needham & Co Ltd, Morrinsville Le Pine & Co, Taupo
Badcock Law, Rotorua
Carson Fox Bradley, Auckland B Knowles, Auckland

Counsel:DRI Gay, Auckland SWM Piggin, Auckland P J Stevenson, Auckland A MacMillan, Albany

[1]This judgment concerns two matters that have arisen since my judgment in

Harvey v Harvey,1 on 14 September 2021 (substantive judgment).

[2] The substantive proceedings involved challenges to the probated Will (the Will) of the deceased, Martin Harvey, by four of his five adult children and his wife, Margaret Harvey. The orders I made in favour of Mrs Harvey are relevant for the purposes of this judgment. Those orders were:

(a)a relationship property adjustment in the sum of $879,250;

(b)a further relationship property adjustment relating to estate legal costs that had been charged to relationship property, in the sum of $90,492; and

(c)a Family Protection award of $100,000.

[3] The first issue is whether the amounts above are each to be charged rateably across the estate, including the Ohinewai Holdings Ltd (OHL) interests2 (which I found to be relationship property of Mr and…

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 Harvey v Harvey

Details

AGLC: Harvey v Harvey [2021] NZHC 3508
Case: [2021] NZHC 3508
Decision Date: 17 December 2021

CaseChat Overview and Summary

This case concerns two matters arising from a substantive judgment delivered in Harvey v Harvey. The substantive proceedings involved challenges to the probated Will of Martin Harvey by four of his adult children and his wife, Margaret Harvey. The Court made orders in favour of Mrs Harvey, including relationship property adjustments and a Family Protection award. The current matters concern whether these awards are to be charged rateably across the estate, including specific bequests to one of Mr and Mrs Harvey's children, Bryce, or whether Bryce receives those bequests free of any charge. Additionally, the Court considers whether interest on the awards is payable and, if so, whether it is charged rateably across the estate. The Court found that the awards are to be charged rateably across the estate, including the specific bequests to Bryce. The Court also granted Mrs Harvey leave to amend her statement of claim to plead interest and awarded her interest in the sum of $42,992.03 on the awards. The interest is also to be charged rateably across the estate, including the specific bequests to Bryce.

Orders