Hill v Waddingham
[2019] NZHC 3505
•24 December 2019
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CIV-2017-425-92
[2019] NZHC 3505
UNDER the Law Reform (Testamentary Promises) Act 1949 and the Administration Act 1969 IN THE MATTER OF
the Estate of Neville Morton
BETWEEN
EMILY ISABELLA MARGARET HILL
Plaintiff
AND
HOLLY VICTORIA WADDINGHAM AND ROSS DOUGLAS JACKSON
First Defendants
AND
KERRY PHILLIP MORTON
Second Defendant
Hearing: 30 October 2019 Appearances:
R T Chapman and A Stevens for Plaintiff
No appearance by or for the First Defendants (Excused) G L Wilkin and M Fisher for Second Defendant
Judgment:
24 December 2019
JUDGMENT OF MANDER J
This judgment was delivered by me on 24 December 2019 at 10.15 am pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date: .
HILL v WADDINGHAM [2019] NZHC 3505 [24 December 2019]
[1] Neville Morton (Neville) farmed a property at Titiroa in Southland. The plaintiff, Emily Hill (Emily), met Neville in 1980. They developed a friendship that continued for some 36 years until Neville’s death. A feature of their long relationship was that Emily would travel from her home in Invercargill and work with Neville on his farm.
[2] Three years before his death, Neville told Emily that “there would be something in [his will] for her”. Neville left a $100,000 legacy for Emily from his estate that has since been valued at between $5.7 and $6.4 million.1
[3] Emily claims that the $100,000 does not reasonably recompense or remunerate her for the work and services she provided to Neville. She seeks an award under the Law Reform (Testamentary Promises) Act 1949 (the Act) for an additional $400,000 on the basis that this would be a reasonable amount to satisfy Neville’s testamentary promise that would otherwise remain unmet.2
Background
[4]It is necessary to set out the factual background in some detail.
Neville Morton
[5] Neville farmed the property at Titiroa for most of his working life. In 1979 his wife of some 18 years left him. Neville and his wife had three children. The youngest son is Kerry Morton (Kerry), the second defendant, who, apart from the $100,000 legacy to Emily, is the sole beneficiary of Neville’s estate. Neville’s elder son died shortly before the separation, aged 15 years. Neville also had a daughter who had Down Syndrome. Both the wife and daughter predeceased Neville.
[6] Kerry left the farm with his mother in 1979 when he was 12. Thereafter he had very little contact with his father and they were effectively estranged until shortly before Neville’s death. The first time Kerry went back to the farm to see his father was to introduce him to his grandson who was about three years old at the time. The
1 The net value of the total estate is between $5,792,264 and $6,469,264.
2 Law Reform (Testamentary Promises) Act 1949, s 3.
meeting did not go well. Over the following years Kerry would see Neville about every 12 months or so, but his father was not very communicative and even privately questioned his paternity of Kerry. However, after Neville moved to a resthome in 2015 he disavowed those concerns. Kerry visited his father two to three times a week at the resthome and Neville disclosed to him his intention to leave the farms to him.
The farms
[7] When Neville died at the age of 78 years in August 2016, he owned two properties. In addition to the Titiroa farm, Neville had purchased a 40 hectare property at Morton Mains in September 2003 that he leased out. The Titiroa farm was prone to flooding from the adjacent Matara River. During the early years Neville had run sheep on the property, but after a serious flood that resulted in significant loss of stock he turned to cattle, although some sheep were retained. As part of his cattle operation, Neville reared calves that were purchased in batches over a period of weeks and fed for some months before being weaned.
[8] Neville’s approach to farming was described as “low key”. The farm had low stocking rates and minimal inputs. Hay was made and stock moved between paddocks as required. It is apparent that Neville did not spend much on himself or his home and lived a simple life. Similarly, there was little capital investment into the farm. However, Neville was undoubtedly a successful farmer. By the time of his death he owned two farms that carried no debt, and had saved nearly $2 million in cash.
Emily Hill
[9] Emily was born in 1942 and grew up on a farm near Riverton. She left school at the age of 15 years to work on the family farm that her father and brother, Jim, farmed in partnership. Emily continued to work on the farm after her father died in 1977, but the farm was sold in 1982. Jim purchased a house in Invercargill, where he lived with Emily and their mother, who died in 1994. After Jim’s death in 2017, Emily inherited the house, where she continues to live.
[10] Neville and Emily met at a local dance and they formed a lifelong friendship. Emily described Neville, who was four years her senior, as her boyfriend but stressed
that they were just very good friends and that their relationship was platonic. They would attend dances together and go for drives on a Sunday afternoon. Neville also became a friend of Jim and, over the years, he became close to Emily’s nephew, Ronald Grieve. Neville, who was a private and relatively reclusive person, developed an association with Emily’s family after becoming estranged from his own and he would spend each Christmas with Emily and her relatives at their homes.
[11] After her family’s farm was sold Emily was no longer able to work on the land. Emily greatly enjoyed farm work and she commenced travelling the approximate 49 km to Titiroa to work on Neville’s farm. This became part of Emily’s routine until Neville’s death. The frequency of Emily’s attendance at the farm, the nature of the work that she carried out there, and the services she provided to Neville over this 34 year period are disputed. They are the subject of detailed consideration later in this judgment.
[12] In summary, Emily said that she drove out to the Titiroa farm nearly every day. She maintained that she was involved in all aspects of Neville’s life. In particular, that she worked alongside him carrying out farming work on his property, that she purchased his groceries, provided him with some meals, did his washing, and assisted him when he became unwell. Kerry, in opposition to Emily’s application, disputed the extent and value of the work and services provided by Emily and said that they were significantly less than she claimed. His position was that Emily was amply compensated by both tangible and intangible benefits that she received from her relationship with Neville, and that the $100,000 legacy appropriately reflected her contribution.
Neville’s wills
[13] The first defendants are the executors of Neville’s last will. They abide the decision of the Court. One of those executors, Ms Holly Waddingham, is the solicitor who acted for Neville prior to his death and attended to the administration of his estate. In November 2013, Neville attended on Ms Waddingham for the purposes of making a will which he signed on 3 December 2013 (the 2013 will).
[14] This 2013 will appointed Emily and Jim as Neville’s trustees and executors. It provided that the Titiroa farm and the Morton Mains property, together with the residue of his estate, was to be left to Emily and Jim in equal shares.
[15] Ms Waddingham’s evidence was that Neville’s primary concern at this time was for the properties to continue to be operated as farms and not be sold. Neville’s reasons for making his will were recorded in a memorandum that Neville signed. Neville explained that he had no partner or immediate family to leave his assets to. He stated that he was not close to his sisters, that, in any event, they had husbands and did not require financial assistance, nor did he consider they were entitled to any financial benefit from “my hard work”. He noted that two of his children had died and that he had “no relationship” with Kerry, who he also did not consider was entitled to his assets.
[16] Neville explained that he had left his property to Emily and Jim because they “are longstanding friends” who he believed would understand his intentions. While he realised he could not bind them to keeping the farms, “I trust they will at all times consider my wishes as paramount”.
[17] In August 2014, Neville returned to Ms Waddingham’s offices wanting to change his will. He was still of the view that he did not want to leave anything to his family, and informed Ms Waddingham that he did not want to leave anything to Kerry, but had decided to remove Jim as he thought he was now too old at 86 years of age. He wanted to provide $100,000 for Emily. Ms Waddingham recorded in a note that she made at the time that Neville wanted to change his will but that he “doesn’t know who to”. She noted, “I can’t change until he tells me what”.
[18] The following month Neville again met with Ms Waddingham. He confirmed Emily’s gift of $100,000 and then advised that he wanted to leave everything else to Kerry. In a file note, Ms Waddingham recorded that when she questioned Neville he told her that he “doesn’t have any other choice”, and said “[Jim] is 86 and too old and they wouldn’t be able to run a farm” (my emphasis). On 2 September 2014, Neville signed a will that gave effect to those wishes. Apart from the $100,000 bequest to Emily, Neville’s estate, including the two farms, was to be left to Kerry.
The estate
[19] The estate comprised the two mortgage-free farming properties and cash. The combined value of the two farms is agreed as being between $3.7 and $4.4 million.3 The net cash balance at the time of its distribution to Kerry was $1.8 million.4 That amount increased by approximately $100,000 as a result of Neville being a residual beneficiary in the estate of his late brother, who predeceased him.
Deterioration in Neville’s health
[20] On 31 December 2014, Neville was crushed by a cow. He was found by Emily and hospitalised for three weeks. Neville returned to the farm in the new year but cognitive testing carried out in hospital raised concerns regarding his short-term memory. Emily noticed a deterioration in Neville and she took him to the doctor, who was of the view that he needed a specialist assessment. In March 2015, Neville approached Ms Waddingham on several occasions about changing his will. She was aware of Neville’s recent mental decline, having spoken directly with his doctor and observed Neville’s confusion first-hand. Ms Waddingham had serious concerns regarding his capacity to provide instructions.
[21] During the winter of 2015, Emily and her nephew, Ronald, were going to the farm daily to feed the cattle and do the other necessary work. Neville was spending a lot of time inside and the two of them were becoming increasingly concerned for his health. This led Emily to contact Neville’s sister, and resulted in him staying with her for some three weeks.
[22] On 8 September, Neville went into a resthome in Invercargill, initially for respite care but he would remain there until his death the following year, in August 2016. Over this period Emily and Ronald continued to look after the farm. Emily paid for various expenses and outgoings as Neville was no longer able to manage his own affairs. This included her paying a balage contractor the sum of $10,727.20 shortly after Neville had been admitted to hospital.
3 The Titiroa farm is valued between $2,875,000—$3,250,000 and the Morton Mains farm between
$900,000—$1,200,000.
4 $1,817,264.91.
[23] The deterioration in Neville’s mental and cognitive capacity resulted in an application to the Family Court in September 2015 to appoint property and welfare managers. Neville’s sister and a farm consultant, Peter Flannery, were appointed. At Mr Flannery’s request, Emily and Ronald agreed to carry on running the farm while he looked after the financial arrangements. During this period until Neville’s death, Emily would visit him at the resthome and tell him what was happening on the farm.
The application
[24] Emily’s claim is brought pursuant to s 3 of the Law Reform (Testamentary Promises) Act 1949. It provides that whether or not a claim could have been made during a deceased person’s lifetime, their estate may be liable to remunerate an applicant for work performed or services rendered to the deceased pursuant to a promise to make testamentary provision for that person. To the extent that the deceased has failed to make such provision or otherwise remunerate the person, the Court may award an amount that is reasonable, having regard to:
(a)all the circumstances of the case, including in particular the circumstances in which the promise was made and the services were rendered or the work was performed;
(b)the value of the services or work;
(c)the value of the testamentary provision promised;
(d)the amount of the estate; and
(e)the nature and amounts of the claims of other persons in respect of the estate.
It does not matter whether the services were rendered or the work was performed before or after the promise was made.
The issues
[25] Counsel have helpfully agreed the issues that are required to be determined in this case. They are as follows:
(a)Was a testamentary promise made?
(b)Have services been provided?
(c)Is there a nexus between the promise and the services?
(d)If so, has the promise been fulfilled by the specific bequest and other benefits received by Emily during Neville’s lifetime?
(e)If not, do the circumstances of the case justify an additional payment being made to Emily to satisfy the promise made and in return for the services provided?
Was a testamentary promise made?
[26] The Act defines a promise to include “any statement or representation of fact or intention”. As observed by the Court of Appeal in Byrne v Bishop, the term “promise” under the Act covers declarations which might not otherwise fall within a dictionary definition of that word, and certainly goes beyond any contractual context.5 It will include a statement or representation of present fact or intention that is made before, during or after the services or work occur.6
[27] Emily recalled an occasion when Neville was sitting on a seat at the backdoor at the Titiroa farm, when he told her, in reference to his will, that there would be “something in it for me”. She believes this was in late 2013, around the time Neville made his December 2013 will, although she did not know anything about its content at that time. Ronald also recalls an occasion when he was having a discussion with Neville around lunchtime about his parents’ wills. He believes this would have been
5 Byrne v Bishop [2001] 3 NZLR 780, (2001) 20 FRNZ 609 (CA) at [8], citing Jones v Public Trustee [1962] NZLR 363.
6 Law Reform (Testamentary Promises) Act 1949, s 3(2).
before Neville’s accident in December 2014. Ronald’s father died in October 2013 and his mother in July the following year, so it would have been after his mother’s death. Ronald remembers asking Neville whether he had done anything about his will and that Neville replied that he was “thinking about it”. Ronald recalled Neville saying, in reference to Emily, that there would be “a slice in it” for her.
[28] It was not disputed that the representation made by Neville to Emily, about which she gave evidence, would constitute a promise for the purposes of the Act. However, Kerry contested Emily’s claim that Neville made such a statement to her. Mr Wilkin was critical of the “simplicity” of Emily’s evidence in support of a promise having been made by Neville and the absence of any documentary support that the promise was made. Emphasis was placed upon Emily having been a prolific diary keeper who recorded mundane details of each day but had made no reference to this occasion. Mr Wilkin submitted that it was inconceivable that she would not have recorded such an important conversation. However, I do not consider these considerations detract from Emily’s account.
[29] It is common ground that Neville was a taciturn and private man who did not speak of either his personal or financial affairs with anyone. The rare and brief conversations about which Emily and Ronald gave evidence is consistent with that aspect of Neville’s makeup. Insofar as the diaries are concerned, both parties sought to place reliance on various entries or, as in this case, the absence of entries that was said to assist their respective cases. In my view, care is required lest undue weight is placed on a particular note or something more is read into isolated entries that have to be considered against the 36 year relationship. In respect of the absence of any recording of the conversation in which Neville indicated “there would be something in it” for Emily, I do not consider it would be appropriate to draw any adverse inference when there is no evidence of Emily, at any time during her relationship with Neville, displaying any particular interest in Neville’s financial position, or of having any expectation of reward. Her evidence was that she did not ask nor expect any payment for the work and services she performed over the more than thirty year period of the relationship.
[30] In support of his argument relating to the lack of an entry in Emily’s diary, Mr Wilkin sought to place reliance on a note she made on 3 March 2015 of Neville showing her a copy of his will. She recorded that she was shocked and “did not read any more”. Mr Wilkin argued that if this event was sufficiently important for her to record in her diary, then she would have recorded the earlier conversation about there being “something in it” for her. However, I do not accept that interpretation.
[31] Emily explained that what had caused her to be shocked was the fact that Neville had unexpectedly handed a copy of his will to her. Neville had been talking to her about insurance at the time, and she understood that the document that he provided to her in an envelope was to do with insurance. In fact the envelope contained his will. She glanced at it, realised what it was and did not read it. It appears Neville had given her the wrong document. Emily’s reaction is consistent with her disinterest in Neville’s financial affairs.
[32] At the time Neville made his representation to Emily about his will in late 2013, there was no discussion of what or how much was to be left to her and she did not enquire. That appears consistent with how neither she nor Neville talked about his family or his finances. Indeed, Emily and Ronald’s ignorance of Neville’s wealth is illustrated by their response to Mr Grieve’s offer to pay them to look after the property after Neville became indisposed. When questioned about that Ronald accepted something along those lines had been suggested but that they considered they should not accept because Neville may need the money and that if he was still alive today, and in a home, he would have needed the money. Ronald’s evidence was that “[w]e had no idea of what he had”.
[33] Emily’s evidence about the oral promise made by Neville is consistent with the intentions expressed by him in the December 2013 will. At that time his testamentary intention was to leave Emily a half share of his entire estate. Emily had no knowledge of the content of the will at the time, but it is now apparent that Neville’s statement made towards the end of 2013 is consistent with its content. To that extent it does support Emily’s account and Ronald’s evidence of the testamentary intentions being expressed by Neville at that time. Having seen and heard Emily and Ronald give their evidence and be cross-examined, I do not consider they lied under oath about Neville’s
testamentary representations at that time. I am satisfied there was a testamentary promise made by Neville to Emily.
[34] In reply submissions, Mr Wilkin suggested that Emily only became disappointed with the $100,000 legacy after becoming aware, after Neville’s death, of the earlier more favourable December 2013 will. It was contended that this recent knowledge is what motivated Emily to make her assertion that Neville had made the promise. However, such a theory is pure speculation and lacks any evidential foundation. Moreover, it was never put to Emily in the witness box, nor to Ronald, who would have to have been part of such a conspiracy.
Have work and services been provided?
[35]In Byrne v Bishop the Court of Appeal noted that:7
To qualify as “services” or “work” under the Act, what has been done for the deceased must have been beyond the normal expectations of family life or social interaction. Services can include not only things done for the deceased but also companionship, affection and emotional support exceeding what is normally to be expected of a relative, a member of the same household, a neighbour or a friend.
[36] Companionship and affection can be regarded as “services” in some circumstances where, for example, the promisor is elderly or lonely or in poor health, whereas younger people sharing each other’s company in a common household would not be thought sufficient.8 The short point is that simply because what was rendered to a deceased person was intangible and of a value incapable of precise monetary assessment will not prevent it from being considered a service.9
[37] It is necessary therefore, before assessing the work and services for which Emily claims she should be compensated, that the nature of her and Neville’s relationship and the interactions between them be considered in greater detail.
[38] Emily described Neville as her boyfriend after meeting him at a dance on a Saturday night. Being of approximately the same age they began socialising together,
7 Byrne v Bishop, above n 5, at [6].
8 Thwaites v Keruse (1993) 11 FRNZ 19 (CA) at 23.
9 Byrne v Bishop, above n 5, at [7], citing Hawkins v Public Trustee [1960] NZLR 305 at 313.
however, it is not apparent that either they or others viewed them over the years as a couple. They lived at different residences and were not in a de facto relationship but their friendship was enduring and they shared each other’s companionship. They had a mutual interest and enjoyment in farming, and a routine developed around Emily’s regular attendance at the Titiroa farm.
[39] It was not disputed that Emily assisted Neville with his work on the farm. However, Kerry’s position was that this was not undertaken as frequently as Emily maintained, and that the tasks she undertook were an incident of their friendship, particularly when regard is had to Emily’s own farming background and her clear wish to remain involved in farming, as demonstrated by the keeping of her own animals on Neville’s property. It was submitted that Emily and Neville mutually benefitted from the way their relationship developed.
[40] Emily, on the other hand, emphasised that she was simply Neville’s friend, that she was not in a romantic or intimate relationship with him, and that she provided work and services for him that went well beyond the normal expectations of an ordinary friendship, as did the affection and emotional support she provided to Neville, particularly in the latter years prior to his death. It was emphasised that Neville would not have otherwise received this type of social support from any other source after he became estranged from his own family and would have led a very lonely life.
[41] Emily maintained that she received no payment at all for the work and services she provided to Neville. She did not expect any, and when Neville did offer her some money for working on the farm she refused it. Kerry contested the accuracy of Emily’s evidence, pointing to an entry in one of her diaries for June 2002 that recorded Neville giving her some money for work she had done. Emily didn’t know for what work the money was for. There was also an entry in July 2010 that recorded Neville giving Emily some $30 for eggs. Emily kept chickens on the farm, some of whose eggs she sold and some she gave to other people, including Neville. However, I do not consider two isolated entries in diaries spanning some 34 years realistically undermines Emily’s evidence that she was not paid for her work.
[42] In any event, Kerry also relied upon Emily’s own explanation that she did not expect payment and turned down any such offers because she enjoyed being at the farm. When asked why she didn’t expect any payment for the work she did for Neville, she replied that she enjoyed being on the farm and helping him, that he needed the help with the “stock work and that”, and that Neville “was just a friend”. Mr Wilkin submitted that Emily’s evidence confirmed that her assistance at the farm can be considered part of the normal social interaction, companionship and affection that existed between them.
[43] I am satisfied that Emily received little, if any, revenue from the work and services she provided to Neville to assist him with his farming operation, and if she did it was not significant. That is borne out by the refusal of Emily and Ronald to accept payment for keeping the farm running after Neville was no longer able to work on the property when they were approached to fulfil that role by Mr Flannery, the court-appointed manager.
[44] The critical question that arises is whether the work and services that Emily undertook during the three decades of her relationship with Neville went beyond what might ordinarily be expected of a person sharing the type of relationship she had with Neville and that what she did exceeded that which may normally be expected in the circumstances of a friend or companion. Before resolving that issue, it is first necessary to identify the qualifying work and services that Emily relied upon as having been provided by her over the 36 year period of her relationship with Neville.
Companionship
[45] Mr Chapman submitted that Neville, as a single man with few, if any, friends, would have derived a very significant benefit from his friendship with Emily and the companionship she provided. However, I do not consider the social benefits of their relationship, either in the earlier years when they went to dances and outings together, or their regular interaction and contact as a result of working on the farm together, was other than mutual. To the extent that their friendship led them to recognise each other’s birthdays with the exchange of presents and to spend Christmases together, it is not apparent that Emily derived less benefit from this aspect of their relationship than
Neville. However, having recognised the reciprocity of their relationship, I consider there are four features which set it apart from the ordinary and must have been of considerable intangible value to Neville.
[46] Firstly, having heard from Neville’s neighbours and associates (such as they were), and from his son Kerry, it is apparent that Neville was almost entirely reliant upon the companionship and social support of Emily and her family throughout the three decade period of their relationship. It is not apparent that Neville had any other real friends apart from Emily and, through her, Jim and Ronald. Until Kerry came back into Neville’s life in the relatively short period before his death, Neville’s only family was Emily’s. There is no dispute that Neville could be a difficult person who was described as being of a “different character” and “sometimes cantankerous”. He was viewed as honest and “straight up”, but a person who was very private and slow to trust anybody. It is apparent that without Emily and her family Neville would have been a very lonely man.
[47] Secondly, their regular social engagement was dependent on Emily travelling some 100 km return from Invercargill to Neville’s farm where he lived by himself in a rundown old house, in what was described as rather squalid living conditions. Neville would sometimes see Emily in Invercargill but such visits were infrequent in comparison to Emily’s routine travel to the farm.
[48] Thirdly, when Neville’s health deteriorated, particularly in the latter years, Neville could rely upon Emily not only to assist with getting him to medical appointments and operations, but to carry out the necessary farm work when he was incapacitated. Over the years Neville was hospitalised for a variety of ailments. He needed two new hips on separate occasions, had cataract and prostate operations, and suffered a broken ankle. Neville was also diabetic. This assistance culminated in 2015 when Emily and Ronald stepped into the breach to keep the farm running when Neville could no longer live on the property and he essentially went into care.
[49] The final factor that takes the intangible value to Neville of Emily’s companionship and friendship out of the ordinary is that it was constant over more than 30 years. It is not unusual for older people to have friends who they have known
for a great period of time, perhaps all their lives, but it is unusual for two single people to share in the lives of each other outside a marital or de facto relationship in almost all aspects (work, social, and family) for such a long duration, indeed, until the death of one of them.
[50] Emily, at least, had her own family but it is not apparent that Neville had anyone else upon whom he could rely for companionship, affection, and emotional support.
Domestic help
[51] Reliance was placed on Emily providing some meals for Neville and doing some of his washing. There are references in Emily’s diaries to changing Neville’s sheets in the later years, and to Emily cutting Neville’s hair. However, it is not apparent that Emily ever became Neville’s housekeeper and/or cook. This is not surprising when regard is had to Neville’s limited domestic needs. The farmhouse in which Neville lived had deteriorated over the years after his wife left him, and by his death was in a dilapidated and dirty condition. Neville restricted himself to living in the kitchen and a small adjacent room. When Ms Waddingham visited for the purpose of discharging her duties as an executor in March 2017, it was apparent that the house had not been cleaned or properly maintained for very many years.
Picking up supplies and running errands
[52] Emily did Neville’s grocery shopping. He provided her with money to buy the groceries, and she also picked up and brought out to the farm various supplies and items as required. It appears that these arrangements were simply the product of Emily living in town and the convenience of having her purchase and collect supplies when she was travelling out to the farm.
Assistance when Neville was unwell or incapacitated
[53] I have to some extent already canvassed this factor. Mr Wilkin referred to evidence that suggested that when Neville requested Emily to go out of her way for him, such as to take him to the doctor, he, on a number of occasions, gave her money
for petrol, and that the assistance she provided was an ordinary incidence of their friendship.
[54] However, as I have identified, without Emily it is not apparent that Neville would have had anyone else to assist him when he was unwell or incapacitated. As noted, particularly in his later life, Neville suffered from a variety of injuries and ailments, a number of which required his hospitalisation. Not only did Emily take him to the hospital but she visited him there or stayed with him at the farm when he was recuperating, and visited him regularly when he was in the rest home. When ill or incapacitated Neville was dependent on Emily. Furthermore, it appears that both of them on such occasions proceeded on the presumption that Emily would provide that support.
Farm work
[55] Emily’s evidence was that from 1982 she drove out to the Titiroa farm nearly every day. When she started work depended on the season and the weather, but in the spring and early summer she would usually go out to the farm earlier because they were feeding calves. Neville would usually already be out on the farm working and she would join him and help him with whatever farm jobs were to be done that day. Emily maintained that she was involved in all of the normal farm work during the year.
[56] In the winter she helped with feeding out bales of hay and balage to the cattle and would assist Neville to get the cattle into the yards if they were to be sold or sent to the freezing works. She also assisted with drenching and dipping of the cattle. Emily said that she helped to cut and spray gorse, and also assisted Neville with drainage work.
[57] Other examples of work that Emily was involved in on the farm included feeding pigs that Neville kept, helping with the fence repairs and cleaning up after the numerous floods that the flood-prone property suffered from. She also helped Neville make hay, and described how she would usually drive the tractor. Emily described how, up until the later years, she assisted Neville with the shearing of sheep and tailing lambs. Emily looked after hens on the property that she fed and collected the eggs from.
[58] Mr Chapman submitted that the nature and extent of the general farm work that Emily was involved in was no different from that which would be expected of a paid employee and that the service and commitment that Emily showed towards Neville in assisting him with this farm work was likewise no different from a long-serving and loyal employee, and yet Emily was not paid.
[59] Kerry did not accept that Emily went to the farm on a near daily basis, and evidence was called from some neighbours in an endeavour to show that. There are limitations to that evidence arising from the distance between the rural properties but, in any event, it was accepted that Emily went to the farm “reasonably often”. I do not consider much turns on the regularity of the hours that Emily attended the farm to carry out farm work. The preponderance of evidence demonstrates that as a matter of routine she went out to the farm over the course of over 30 years and engaged in farming activities with Neville. Kerry maintained that she did so significantly for her own benefit, and that, in addition to providing assistance to Neville, there was a large measure of reciprocity. This aspect of the case is considered later in the judgment.
Travelling to and from the farm
[60] Mr Chapman submitted that the very fact that Emily regularly travelled to the farm over the course of such a long period of time is to be recognised as a service in itself.10 However, Kerry maintains that Emily had her own animals on the farm and that, regardless of her relationship with Neville, in the absence of paying him to carry out the duties of a full grazier she would have had to have travelled out daily to look after her livestock. Again, this is an aspect of the reciprocal benefits argument which I consider later.
Miscellaneous other work and services
[61]Mr Chapman submitted that Emily’s purchase of Neville’s old tractor for
$12,000 when he replaced it with another ought to be taken into account. He argued that Emily’s use of this additional tractor on the farm was to Neville’s benefit and that both its cost and employment on the farm could be considered to be part of the work
10 Re Archer [1990] 3 NZLR 737, [1990] 8 FRNZ 83 (CA) at 89.
and services provided by Emily. A tangible benefit was submitted to be Emily’s payment of the sizeable invoice for $10,727.20 to a balage contractor in January 2015 when Neville was hospitalised that I have mentioned earlier. Emily did not ask to be reimbursed for this sum and she has not been repaid.
Conclusion regarding the provision of work and services
[62] I am satisfied that Emily provided a range of qualifying services and work that benefitted Neville and went beyond that which could normally be expected of a simple friend or companion. These took tangible and intangible forms, and their character and worth has to be assessed in light of them being a constant incident of Emily and Neville’s long relationship.
Is there a nexus between the promise and the services?
[63] It is necessary for there be a link between the promise and the services rendered. Kerry acknowledged that if the promise is accepted as having been made there is a sufficient nexus between that promise and the services provided.
Has the promise been fulfilled by the specific bequest and other benefits provided to Emily during Neville’s lifetime?
[64] It is not necessary that the testamentary promise relates to specific property or that it be for a specific amount.11 In this case no specific amount was promised by Neville. Ultimately, he provided a testamentary benefit of $100,000 to Emily in his last will. Kerry argued that Neville would have considered that to have been a substantial sum and that he would have viewed the bequest as adequately compensating Emily for the work and services she provided to him on the farm. Furthermore, it was submitted that the reciprocal benefits received by Emily more than compensated her for the benefits she provided to Neville.
[65] Emily’s position was that the question of whether a testator has failed to make adequate testamentary provision for the promisee must be considered having regard to the true value of the work and services provided and that this is the overriding
11 Law Reform (Testamentary Promises) Act 1949, s 3(1).
consideration. Mr Chapman submitted that when that assessment is made any reciprocal benefits enjoyed by Emily were exceeded by some considerable margin by the value of the work and services that Neville received.
Assessment of the benefits provided by Emily
[66] It is indisputable that Neville lived a very frugal life. He did not waste anything and was described by one witness, in a non-pejorative way, as being “mean”. He did not spend much money either on himself or his house and lived a very simple life. It was said that he did not trust banks, and $130,000 in cash was found after his death in a safe, stored in jam jars. If Neville was parsimonious and thrifty, he was also considered an honest person who was assiduous in paying his debts.
[67] Both parties drew on this commonly held view of Neville to support their respective cases. Mr Chapman submitted that Neville’s approach and outlook coloured his ability to properly assess the value of what Emily provided to him over those many years and that the Court is better placed to make the necessary assessment of what would constitute reasonable remuneration in the circumstances of this case.
[68] Mr Wilkin, on the other hand, argued that the Court was obliged to have regard to Neville’s view of what he would consider to be adequate compensation for the work and services provided by Emily. He emphasised the observation of the Privy Council in Re Welch, that it will often be impossible or inappropriate to weigh to any fine degree services or work, on the one hand, and testamentary reward, on the other, and that an assessment, “even a generous one, by a promisor able to exercise a sound judgment would not lightly be departed from”.12
[69] While I consider it is important to be cognisant of the promisor’s subjective assessment of what is thought to be adequate recompense, that is not an inviolate principle if it can be concluded that the provision made for the promisee cannot be considered reasonable in the circumstances. As was noted by the Court of Appeal in Samuels v Atkinson, it is difficult to place a retrospective value on both physical work and services and even more so on services of an intangible kind, but that the principal
12 Re Welch [1990] 3 NZLR 1, (1990) 7 FRNZ 536 (PC) at 57.
focus has to be placed on the value of the work and services to the recipient.13 In Re Welch the Privy Council held that the overarching approach is an objective one:14
So it is plain, considering s 3(1) as a whole, that whenever a claim to relief is made out under it the criterion as to the relief to be granted is reasonableness. It is always the result at which the Court is to aim, no matter whether the award is of money or of specific property. If the deceased promised a certain sum or a certain property, that is a relevant consideration but not necessarily decisive.
[70] It is well-established that any award must do no more than compensate for those services rendered or work performed; the award must be fair recompense (ie, it must be reasonable).
[71] In my view, Neville’s frugal attitude and his very modest way of life, spending very little on himself despite being a relatively wealthy person, likely influenced his appreciation of the adequacy of the $100,000 bequest.
[72] In further support of Emily’s argument, Mr Chapman submitted that this modest sum pales in comparison to Neville’s earlier testamentary intentions, set out in his December 2013 will, that would have resulted in Emily receiving half his estate. However, while I have accepted that the provision made for Emily in this earlier will provides some corroboration of Emily’s evidence of the testamentary promise that was made around the same time and is indicative of the almost exclusive close association or role she and her brother played in Neville’s life at that time, I do not consider that it can be interpreted as evidence of the value that Neville placed on Emily’s work and services for which he should recompense her.
[73] It is apparent from Ms Waddingham’s discussions with Neville and the file notes she made of the salient points that he raised at that time that Neville’s main concern was to ensure that someone continued to farm his properties and that they not be sold. Essentially, when his son Kerry became a better candidate to fulfil that vision, the ageing Emily and Jim were replaced. Jim, in any event, had died. I therefore accept Mr Wilkin’s submission that no real reliance can be placed on the prior will as a guide to Neville’s estimation of the value of Emily’s services and work.
13 Samuels v Atkinson [2009] NZCA 556, [2010] NZFLR 980 at [67], citing Powell v Public Trustee
[2003] 1 NZLR 381, (2002) 22 FRNZ 601 (CA) at [24].
14 Re Welch, above n 12, at 6.
[74] A central premise of Kerry’s argument was that Emily significantly overstated the extent of the work and services that she provided. In particular, he was critical of the way she described herself as having “nearly every day” since 1982 travelled to the farm to work there with Neville. Mr Wilkin submitted that Emily’s diaries record that in the first few years it appears that she was only an occasional visitor and that it was not until later in their friendship that she began going to the farm more regularly. He acknowledged that in the latter years Emily did go to the farm “nearly every day” and that she did undertake some farm work with Neville, but not to the extent she claims.
[75] Furthermore, Mr Wilkin submitted that the type of work that Emily was engaged in primarily related to the care of the livestock. Aspects of Emily’s involvement with her own stock that was intermingled with Neville’s herd are canvassed later in the judgment, but the short point made by Mr Wilkin was that Emily undertook that type of work for her own benefit. It was also submitted that much of the work Emily described, such as feeding out during the winter, could have been done by one person and that while Emily’s assistance may have been helpful, it was not necessary. I accept that Emily’s input was not critical to Neville’s farming operation. There was no suggestion that without Emily’s assistance Neville would have had to hire a worker, although towards the end that clearly would have been the case had Emily and Ronald not been available. Having made these observations, it is clear that Emily assisted and supported Neville with his work on the farm, and in particular with the raising and feeding of the calves, and the care of the livestock.
[76] As far as the work done to maintain and improve the farm was concerned, Emily’s evidence about assisting with fencing, cutting and spraying gorse, and undertaking drainage work, was contested. Reliance was placed on the rundown state of the farm at the time it was valued by a rural valuer after Neville’s death. It was also observed that Emily had conceded that major work carried out on the farm, such as the maintenance of lanes and gateways by laying crushed rock, spraying thistles, and making balage had primarily been done by contractors. Only limited maintenance of fences had been carried out in recent years. No major work had been done to the paddocks in terms of re-grassing nor topdressing within the last 10 or so years. All of this was consistent with the “low key” farming operation that Neville was content to
run, with there having been only minimal maintenance of the farm’s infrastructure over the previous 15 years, with most work limited to looking after the stock.
[77] I accept that Emily’s description of having travelled to the farm to work there “nearly every day” from 1982 is open to contest. However, it needs to be appreciated that she was attempting to encapsulate in that statement the nature of her relationship with Neville and her routine association with his farm over the course of some 34 years. That period encompassed the early years of their relationship when she described becoming involved in all aspects of Neville’s life by either driving out to the Titiroa farm, and that if they were not together there, they were together at Ronald’s or Jim’s properties. There was likely a greater social aspect to their relationship when they were relatively young people, and, undoubtedly, Emily’s commitment to Neville and her routine assistance and work for him grew over the years. That culminated in the later years when, because of Neville’s poor health, Emily’s involvement became more important, to the point where ultimately when Neville became an invalid it was she with Ronald’s assistance that kept the farm running.
[78] Inevitably over such a long period there will be variations across the years, but what is required for the purpose of assessing Emily’s claim is to stand back and make an overall evaluation of the nature and extent of the work and services she provided over those 34 years. Similarly, Emily’s involvement in the work associated with the maintenance and improvement of the farm was no doubt variable. It is apparent that overall, at least in the later years, little work of that type was being undertaken and that what was being carried out was done by contractors. That said, it is to be noted that Neville “hated” gorse and that he sprayed the weed once a year. This was confirmed by a neighbour, Mr Frisby, who also acknowledged the presence of Emily when he observed Neville carrying out this work.
[79] I accept Mr Chapman’s submission that regard is required to be had to the age of Emily and Neville, both of whom were superannuitants and in their 70s in the latter years, when reviewing the nature of the work being carried out on the property. By that time little maintenance or improvement work was being undertaken, but, as previously noted, that is to be balanced against the fact that in the last few years the farm was left to be largely run by Emily herself with some assistance from Ronald,
and that the priority was feeding and the maintenance of the livestock. While by that stage the farm itself may have been somewhat rundown, Mr Frisby observed that the stock were always in good condition.
Reciprocal benefits
[80] Reciprocal benefits are required to be taken into account in assessing whether the testamentary promise has been fulfilled. In Powell v Public Trustee the Court of Appeal stated:15
There can be no doubt that reciprocal benefits must be brought to account. Section 3(1) of the Act itself requires a plaintiff to account for any remuneration already received. A claim can be made only to the extent to which the deceased has failed to make the promised testamentary provision “or otherwise remunerate the claimant”. A claim for services or work, which have already been partially remunerated in money, can succeed only to the extent of the shortfall. If intangible services have been partially “remunerated” by reciprocal benefits, the same approach must logically be taken. As intangible services like companionship qualify as services, reciprocal benefits of a like kind must equally qualify as partial remuneration. A claim can succeed only to the extent of the unremunerated balance. If intangible services were to be wholly matched by reciprocal benefits, there would be no balance to claim.
[81] Kerry’s position was that when the $100,000 bequest is coupled with reciprocal benefits that Emily received, she was more than compensated for her work and services. Mr Wilkin submitted that the friendship and companionship that Emily received from Neville was comparable to that which he received from Emily. While towards the latter years of their relationship, with Neville’s failing health, it was acknowledged that Emily was doing more for him than she was receiving from the relationship, it was stressed that Emily received many tangible benefits. Aside from having access to free meat and firewood, Emily was able to participate in a farming lifestyle of her choosing and had the benefit of being able to keep cattle and raise calves on Neville’s property.
[82] Some years after the commencement of their relationship, in the mid to late 1980s, Emily began keeping a number of cattle on the farm that were reared together with Neville’s own stock. Emily’s evidence was that she had between 20 and 30 cattle
15 Powell v Public Trustee, above n 13, at [31].
ranging from calves through to rising two year olds. She did not pay grazing fees to Neville until 1994, and then, in Mr Wilkin’s submission, only a nominal fee, initially of $150 that increased to $445 per annum in 2014. Emily also bought calves that she sold as two year olds from which she received the income. Other tangible benefits that Emily enjoyed were being able to keep chickens on Neville’s farm, some of the eggs from which Emily was able to sell. She shared in the proceeds of the sale of geese on the property and was able to keep pigeons, in addition to being able to dispose of rubbish in the farm’s pit without cost.
[83] As was acknowledged by Mr Chapman on behalf of Emily, she also derived much enjoyment and satisfaction from being involved in the farm work and maintaining a rural life. The companionship she provided Neville was reciprocated by him, although, as I have previously observed, Neville essentially gained a substitute family from his relationship with Emily.
[84] The most tangible benefit that Emily received was the opportunity to keep some cattle on the farm and to raise calves. The contest between the parties in respect of this aspect of their arrangements centred on the access to grazing and, to a lesser extent, the ability to care for her livestock as part of Neville’s herd for the purpose of carrying out such tasks as de-horning and drenching.
[85] Kerry led evidence from a livestock agent about charges for grazing calves and rising two year old cattle for the period between 2010 and 2015. Based on an assumption that on average Emily had 25 cattle comprising 12 calves and 13 rising two year olds, the indicative annual cost of grazing was approximated at some
$13,000. Assuming lower grazing rates for the earlier years, an annual cost of some
$9,000 was calculated. Applying an average over 30 years, it was contended that the benefit to Emily conservatively amounted to approximately $390,000.
[86] Mr Chapman was critical of this analysis, noting in particular that the livestock agent acknowledged the rate he applied was not comparable with the type of grazing arrangement that Emily had with Neville. Essentially, Neville did not perform the obligations and duties of a grazier that usually apply to grazing contracts. The stock agent acknowledged that where the owner of the stock undertook the work associated
with their care the grazing rate would be less. The normal duties of a contract grazier are to provide feed and care for the stock and may include a requirement to reach certain weight targets or body condition standards. However, when the owner simply buys a paddock with crops but otherwise looks after the stock themselves the grazing fee is generally $2—$3 less per unit per week. This does not significantly change the value of the benefit to Emily from being able to graze her animals on Neville’s farms, although it is to be noted that poorer quality pasture attracts a lower rate and that the grass on the farm appeared to be “very old”.
[87] I accept that the nominal amount Emily paid for grazing fees for her cattle was of considerable benefit to her. It was a tangible benefit derived from her being able to continue to work on the land with domesticated animals that she clearly so much enjoyed. However, there are some limitations with the type of strict financial analysis that is sought to be applied to this aspect of the case. Without the arrangements that Neville and Emily had made to allow Emily to have her own stock, it would have been entirely uneconomic for Emily to have been involved in this type of farming activity by herself, and there is a degree of artificiality when applying market rates to the type of arrangement that Neville and Emily were happy with.
[88] Emily had only a relatively small number of cattle and, as submitted by Mr Chapman, all that was required of Neville was the provision of some pasture and feed in the form of hay and balage over the winter months. Neville had in excess of 200 head of cattle and some sheep. Emily’s efforts on the farm and sharing of the workload was not limited to her cattle but applied to the wider farming operation. Conversely, Emily’s small number of cattle did not appreciably add to Neville’s work effort nor his costs. Neville ran the farm conservatively with low stocking rates, consistent with a low input farming operation, as was his choice. It follows, as was submitted by Mr Chapman, that there was no lost opportunity to Neville from allowing Emily to graze her 20—30 mixed age cattle as part of Neville’s herd. Emily’s stock did not displace any other stock that Neville may have wished to carry.
[89] Another aspect of Emily’s work with the cattle that was the subject of dispute was the rearing of calves. It was submitted on behalf of Kerry that, while Emily did feed Neville’s calves, she was also feeding her own. However, it appears that this
work largely benefitted Neville. It involved mixing powdered milk with water and putting it in a calf feeder. Neville’s cows were mostly Friesians and they were required to be fed in this way, whereas Emily’s calves, that were of a different breed, were fed on cows and did not need to be “bucket fed”.
[90] I do not consider the other activities or features of Emily’s access to the farm greatly advances the issue of reciprocal benefits. I am not satisfied that the keeping of six to eight hens by Emily, for which she paid for feed and received money from the sale of eggs, the keeping of pigeons, the share in the proceeds of the sale of wild geese, the receiving of meat from Neville, some of which she took home to cook for him, nor the access to firewood or the ability to dispose of rubbish without cost, were other than incidents of the farming lifestyle that Emily was able to continue with after her family farm was sold back in 1982. They do represent tangible examples or incidents of the overall intangible benefit that Emily obtained from being able to work with Neville on the property as part of the wider farming operation and maintain the type of rural way of life that was so important to Emily. Individually, however, I do not consider them to be of any particular significance.
[91] Similarly, as previously canvassed, to the extent there was any challenge to Emily’s evidence that she did not receive financial payment from Neville for the work she carried out on the farm, that is largely rejected. Apart from the payments previously mentioned, there are some rare entries in Emily’s diaries of small amounts of money ($10—$20) being paid for fuel to take Neville to town or to appointments, but such nominal and infrequent notations of this type tend to underline the absence of any more general recompense for work or services beyond reimbursement for such expenses as groceries and farm supplies that Emily would often pick up for Neville. In that regard, as was noted by Mr Chapman, Neville and Emily appeared to have a disciplined and even pedantic approach in the way they accounted to each other for amounts of money, at least insofar as it related to tangible items such as eggs, the purchasing of calves by Emily from Neville, and the division of money received from the sale of geese. However, it does not appear that any thought was given, at least by Neville, to paying Emily for her labour. As Emily candidly said, and I have previously noted, she did not ask to be paid and did not expect any payment.
[92] While care is required not to place undue weight on any one incident, particularly across a period of over 30 years, it is notable that on one occasion Neville paid Jim $1,000 for work that was carried out on the woolshed, of which Jim gave Emily half. Emily also worked on the woolshed that day but she received no payment from Neville (at least directly) despite Jim apparently believing that his sister deserved half. That may be indicative of a certain “blind spot” that Neville may have had regarding Emily’s contribution to the work done on the farm, although, any such suspicion must be tempered by a much wider assessment of all the evidence.
Conclusion as to whether qualifying work and services were provided
[93] Mr Wilkin submitted that Emily had overstated what she had done on the farm in order to justify the quantum of her claim. I accept that a more forensic examination of some of the generalised statements made by Emily are open to scrutiny, but I consider that overall her evidence on the whole was reliable and substantially accurate. In reaching that conclusion, I have had regard to the reality of condensing a 34 year narrative into the relatively limited confines of a two day hearing. Having assessed the evidence and taken into account the competing submissions of the parties, I have come to the conclusion that, on balance, Neville’s bequest of $100,000 to Emily and the reciprocal benefits she received over the period of the relationship from her having access to Neville’s farm and working with her livestock do not adequately fulfil his testamentary promise.
[94] In reaching that conclusion, I am mindful that Emily was pursuing a lifestyle of her own choice, and that the relationship she had with Neville and the work she undertook with him on the farm satisfied her own wishes to be able to work on the land and with livestock. However, I am satisfied that her attendance at the farm and the assistance she provided with its routine work, the travel she undertook, which was indicative of her level of commitment, and the loyal companionship that she provided that finally resulted in her running the farm on his behalf, requires greater acknowledgement than was otherwise provided by Neville in his last will.
Do the circumstances of the case justify an additional payment being made to Emily to satisfy Neville’s promise and in return for the services she provided?
[95] In determining whether an additional payment is justified to satisfy Neville’s promise and the amount of any such award, the Court must have regard to all the circumstances of the case, and in particular the value of the services or work provided, the value of the estate, and the claims of other persons.16 Any award must do no more than reasonably recompense the claimant for the services or work provided to the deceased.17 The criterion as to the relief to be granted is reasonableness.18 It is always difficult to put a value retrospectively on physical work and services, and even more so to put a value on services of an intangible kind. In making that assessment the principal focus is to be from the point of view of the value of the work and services to the recipient.19
[96] In respect of the physical work and services, the parties exchanged expert evidence from accountants and reached agreement on a methodology including a number of base assumptions to be used for the purpose of calculating some scenarios that were offered to assist the Court. Three scenarios were put forward pursuant to the agreed methodology:20
(a)Scenario one calculated an amount of remuneration based on an agreed hourly rate that reflected the minimum wage plus 10 per cent to provide a net present day value less tax for five hours’ work on 360 days per year from 1983 to 2016. That provided a figure of $905,410.89.
(b)Scenario two provided for five hours’ work on 180 days per year and resulted in a net 2016 value of $489,077.80.
(c)Scenario three was for the purposes of calculating travelling expenses based on a vehicle allowance of $60 per week (in 2016) for 51 weeks, calculated to provide a 2016 value of $126,452.07. The $60 figure was
16 Law Reform (Testamentary Promises) Act 1949, s 3(1).
17 Re Welch, above n 12, at 8.
18 Re Welch, above n 12, at 6.
19 Samuels v Atkinson, above n 13, at [65]-[68].
20 I have applied the figures for the 2016 year. Neville died in August 2016 and probate was granted in respect of the will in September of that year.
reduced each year by the percentage change in the minimum wage, such that for the purposes of 1983 the weekly allowance would only have been $16.50 per week.
[97] Mr Chapman contended for a valuation of the work and services to be somewhere between scenario two and scenario three. That would result in an approximate sum of $750,000. Accepting that Emily did not go to the farm every day and that there may have been some weeks when she did not travel, Mr Chapman maintained that the calculation for travelling expenses was a conservative one. He submitted that based on the calculation for both remuneration and travelling expenses, the total value would exceed $850,000. This is without taking into account non- tangible services provided by Emily in the form of companionship, affection and care, from which Neville would have derived significant value in the absence of little other social or family contact.
[98] In terms of other relevant circumstances, Mr Chapman sought to place weight on the terms of the December 2013 will as supporting the value that Neville put on the work and services that had been provided by Emily. However, I have rejected the proposition that any inference can reasonably be drawn in that regard given the apparent motivation of Neville in the way he approached the framing of his will.21 Mr Chapman also placed reliance on Neville’s cognitive decline. He submitted that because of Neville’s diagnosis in January 2015, that “fairly significant dementia” was evident at that time, he was likely so affected four months earlier in September 2014.
[99] It is not suggested that Neville lacked testamentary capacity, but it is submitted that his cognitive difficulties may provide an explanation for the way in which he changed his will to favour Kerry, to the significant detriment of Emily, and that this is a relevant factor for the Court to take into account. However, I consider this to be speculative. The evidence indicates that Neville had very limited options available to him to achieve what appears to have been his main testamentary objective, to ensure that his properties would continue to be farmed as he wanted. It is apparent that Kerry
21 See [72]-[73].
became a better candidate to achieve that end, rather than the ageing Emily and her brother Jim who had already died.
[100] However, a relevant factor is no doubt the amount of the estate and the “nature and amount” of the competing claims, both of which favour Emily. I accept this is a substantial estate of approximately $6 million. Mr Chapman submitted that Kerry’s competing claim is somewhat diminished by the long period of estrangement from his father. However, the more influential consideration is that because of the size of the estate it is well able to accommodate Neville’s testamentary intentions to Kerry and provide for the testamentary promise to Emily should it be concluded that it remains unfulfilled. As noted by Mr Chapman, the estate’s assets consisted of nearly $2 million in cash alone.
[101] It was not disputed by Kerry that the time Emily spent on the farm with Neville, especially in the later years, resulted in him receiving both intangible and tangible benefits. However, between the $100,000 bequest and the reciprocal benefits that Emily received, Kerry maintained that in combination they provided sufficient remuneration for her work and services to satisfy the testamentary promise and that no further provision from Neville’s estate should be made to Emily.
Decision as to quantum
[102] In my assessment, I do not consider the legacy of $100,000 nor the benefits obtained from Emily’s relationship with Neville reasonably recompensed her for the services and work she provided to him over that period of 34 years. It was submitted on Emily’s behalf that a reasonable testamentary provision to satisfy her claim ought not be less than $500,000, being less than 10 per cent of the net value of the estate. Taking into account the legacy of $100,000 already paid to Emily, an award of
$400,000 was sought. In support of that contention, Mr Chapman observed that such a figure is less than both scenarios put forward for the Court’s consideration, without taking into account the calculated travelling expenses.
[103] As was acknowledged by Mr Chapman, the calculations set out in the three so- called scenarios can only provide a starting point for any assessment of the benefits received by Neville for Emily’s physical work and services. I discard scenario one,
which I do not consider has any realistic foundation in the evidence. I accept scenario two provides some greater guidance, being based on five hours worked over 180 days per year. That said, when coupled with the two hour travel time the five hours would represent almost a full working day, and when regard is had to there being 260 working days in a year not counting public holidays and annual leave, 180 days may well represent a generous allowance when applied across the whole 34 year period. I consider that five hours is more likely to be realistic for the last handful of years, but it is less likely to reflect the bulk of the period, and in particular the early years of the relationship.
[104] I consider an influential consideration in this case to be the fact that Emily, through her relationship with Neville and having access to his farm, was able to enjoy a rural lifestyle that she highly valued and would less likely have been available to her in the absence of the opportunity that Neville’s property provided. That is an aspect that has to be taken into account in assessing the value of the work and services undertaken by Emily on the farm and the contribution she made in assisting Neville. To some extent that factor is tempered by the indisputable assistance Emily provided to Neville in the latter years, in particular after he was no longer able to work on the farm and the management and care of the livestock was substantially, if not wholly, left to Emily.
[105] The fact that Emily was prepared to undertake a round trip of some two hours to travel to and from the farm is something of a double-edged sword. It can be viewed as a mark of Emily’s dedication, particularly in the last few years, but it is also an indication of Emily’s desire to maintain a working rural life on a farm and of the price she was prepared to pay for being able to do that.
[106] Mr Chapman emphasised that in addition to the tangible work and services provided by Emily, the non-tangible contribution she made to Neville’s life in the form of companionship and emotional support should be taken into account. There were reciprocal benefits during the course of a relationship that lasted for so long, over three decades, but, for the reasons traversed earlier in this judgment and taking into account Neville’s declining health, I accept that Emily’s contribution was greater and ought to be recognised.
[107] It is not easy to “weigh in any nice scales” services or work on the one hand and testamentary reward on the other.22 However, taking into account the matters I have canvassed and the conclusions I have reached regarding the circumstances of this case, the adjusted value of the services and the work received by Neville to take into account the reciprocal benefits received by Emily, the amount of the estate, and that Kerry’s interests will remain well provided for, I consider that an appropriate award that provides reasonable recompense to Emily for the services and work she provided to Neville over the course of their 34 year relationship would be the sum of $450,000.
Result
[108] Taking into account the $100,000 bequest already paid to Emily, I make an order pursuant to s 3 of the Law Reform (Testamentary Promises) Act 1949 awarding to Emily out of Neville’s estate the sum of $350,000 in satisfaction of his testamentary promise. Such a sum when taken together with the $100,000 bequest represents reasonable recompense for the services and work that she provided to him.
[109] Leave is reserved to Emily to seek any necessary orders pursuant to the Administration Act 1969 that may be required to give effect to the award.
[110]Costs are reserved.
Solicitors:
Cruikshank Pryde, Invercargill for Plaintiff Scholefield Law, Invercargill for First Defendants AWS Legal, Invercargill for Second Defendant
22 Re Welch, above n 12, at 7.
0
0