Hita v Hita
[2023] NZHC 2171
•15 August 2023
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2021-419-126
CIV-2023-419-066 [2023] NZHC 2171
IN THE MATTER of the estate of EDWARD WILLIAM BENJAMIN HITA BETWEEN
EMORA HITA
Plaintiff
AND
SAMANTHA JUNE URAIATA HITA
Defendant
Hearing: 24 July 2023 Appearances:
P A Depledge Defendant in person
Judgment:
15 August 2023
JUDGMENT OF ANDERSON J
This judgment was delivered by me on 15 August 2023 at 3.00 pm pursuant to r 11.5 of the High Court Rules 2016.
………………………………
Registrar/Deputy Registrar
Solicitor: P A Depledge, Barrister, Hamilton Copy to: Defendant
HITA v HITA [2023] NZHC 2171 [15 August 2023]
Table of Contents
Para No
Introduction[1]
Background[3]
Witnesses[16]
Undue influence [18]
Evidential presumption[23]
Contextual evidence[31]
Circumstances around the will[43]
Secret Trust[52]
What is a secret trust?[52]
No secret trust established[58]
Events after Edward’s death[63]
Samantha’s understanding of the effect of the will[76]
Conclusion[88]
Family Protection Act 1955 [89]
Emora’s conduct while she was living with Edward[100]
Conclusion[105]
Introduction
[1] Edward Hita had five children: Emora, Gregory, George, Samantha and Mihaka.1 He died in December 2020. His will, dated 18 May 2019, was granted probate on 1 March 2021. This will appointed Samantha as executor and left all of his estate to her. The plaintiff, Emora, advances two applications:
(a)in CIV-2021-419-126, an application for recall of probate and for letters of administration to be granted in her favour on the basis that the will was executed under undue influence from Samantha; and
(b)in CIV-2023-419-066, for orders under the Family Protection Act 1955 (the Act) on the basis that Edward breached his moral duty and for the Court to remedy any inadequacy it finds is made out.
[2] The latter application was transferred from the Family Court, and both were heard together before me. During the hearing, I granted leave for an additional cause of action to be added to the statement of claim in CIV-2021-419-126. This is a claim based in equity (secret trust) that Edward’s intention was that Samantha hold his estate on trust for Samantha and her siblings equally, rather than receiving the estate beneficially. Samantha opposes all three of the claims.
Background
[3] Edward and his wife Ngapoko migrated from Rarotonga to New Zealand in 1980. Together they had five children, all now aged between 30 and 41. Ngapoko had two older children from a different relationship, Caroline and Pati.
[4] In February 2019, Ngapoko passed away. She died without having made any will and with a number of bills outstanding. Ngapoko had around $22,000 in her KiwiSaver account that Edward was unable to access without letters of administration being granted. This placed him under considerable pressure in meeting financial obligations. Edward made an application for the grant of letters of administration in
1 To avoid confusion among family members with the same name, I refer to all members of the Hita family by their first names.
October 2019, but this was rejected for filing due to various issues with the accompanying affidavit. It was not until June 2021, after Edward’s death, that letters of administration of Ngapoko’s will were granted when Samantha made the application as Edward’s executor.
[5] It is clear from the evidence that following Ngapoko’s death, Samantha gave significant assistance to Edward in organising his and her mother’s financial affairs. I discuss the assistance in more detail later.
[6] The difficulties after Ngapoko died intestate appear to have led Edward to decide he needed a will. Samantha accepts that she helped her father find a free will production website which generates a will from inputted information. She says she remembers Edward saying “he was leaving everything to me and that I was to sort his stuff”.2 I return to the circumstances surrounding execution of the will when I address the undue influence claim.
[7] The will was executed on 18 May 2019 with no legal advice or input. At the time Edward made his will, Emora was living with him at his house at Awakino Road, Te Kuiti. She moved there in April 2019 with her children. Phillip, described by Samantha as Emora’s “partner”, moved in sometime later.3 Tensions developed between Samantha and Emora. Samantha was upset that, in her view, Emora was not paying her way for accommodation and expenses and was causing Edward to get behind on his bills. In the meantime, Edward was regularly asking Samantha for small sums of money to buy beer. Samantha was also concerned that Emora had wanted her father to approve a letter Emora had written to the Ministry of Social Welfare in Edward’s name to obtain benefits which Samantha considered improper.
[8] Matters came to a head in mid-November 2020. Emora describes Samantha as having “kicked [her] out”. Emora left her father’s place, although returned to live there briefly between 30 November 2020 and 22 December 2020, when she found alternative accommodation. As I will discuss below, what was recorded in the
2 Affidavit of Samantha Hita, 22 June 2023, at [125], (201.00456).
3 I record that Emora did not accept the characterisation that Phillip was her “partner”.
messages and is reported as said between the two sisters has some relevance because of how Samantha described her status with respect to her father’s assets and affairs.
[9] Sometime between 24 to 25 December 2020, Edward passed away. At the date of Edward’s death, his estate consisted of:
(a)his home at 40 Awakino Street, Te Kuiti;
(b)a life insurance policy of approximately $51,700;
(c)a KiwiSaver account balance of around $17,800;
(d)Ngapoko’s KiwiSaver balance of around $22,500 (which would come to Edward once letters of administration were granted); and
(e)two vehicles.
[10] The above assets were balanced against approximately $100,000 in liabilities at the time of Edward’s death.
[11] The house had a rating valuation as at Edward’s death of $260,000. Emora refers to OneRoof.co.nz and homes.co.nz online valuation indications. She says it is now worth $370,000 according to OneRoof and $435,000 according to homes.co.nz. The most recent rating valuation (September 2021) values the house at $365,000 which is similar to the OneRoof assessment. Absent a professional assessment, I adopt the rating valuation figure for the purposes of the present application. There is also no professional valuation of the two vehicles. Samantha submits that their value amounts to $2,000 combined. Emora however points to an online car valuation generator that assesses the value of the two vehicles at
$2,300-$4,000 and $5,050–$5,450 respectively. With the application of funds to pay off liabilities, the current position is that the estate comprises the house and cars with a value range of between approximately $367,000 to $374,450 subject to a remaining
$8,0004 in mortgage owing on the property. The current net value of the estate is
4 This is an approximate figure.
therefore somewhere between approximately $359,000 and $366,450. Absent professional valuations, I accept the present net value of the estate to be approximately
$362,725.
[12] Edward’s will appointed Samantha as the “sole Executor”. The will lists Edward’s children under a heading “Children” but there are then no gifts or further mention of them. There are no specific gifts at all. Instead the “residue” is left to Samantha. The will states:
DISPOSITION OF ESTATE:
Distribution of Residue
7.… The entire estate residue is to be divided between my designated beneficiaries with the beneficiaries receiving a share of the entire estate residue. …
8.I direct my Executor to distribute the residue of my estate as follows (Share Allocations’):
a. All of the residue of my estate to [Samantha] … for their own use absolutely.
…
Individuals Omitted from Bequests
10. If I have omitted to leave property in this Will to one or more of my heirs as named above or have provided them with zero shares of a bequest, the failure to do so is intentional.
[13] Edward made no additions or changes to the will template beyond those requested of him from prompts on the website. Although there were some minor irregularities in witnessing the will, there is no dispute that the will meets the requirements for a valid will under s 11 of the Wills Act 2007.
[14] Samantha says that Emora had been told prior to her father’s death that he had left everything to Samantha for her “to decide”. Emora says the first time that she became aware that Samantha was executor and sole beneficiary was on 30 December 2020, shortly after her father’s death on 25 December 2020.
[15] It is common ground that on that date Samantha produced the will to the five siblings. She says she told them “dad left everything to me and for me to sort all his
things”.5 At that meeting, Samantha said George was to get the title to the house, Emora both cars, Gregory and Mihaka the tools, and any money from Ngapoko’s KiwiSaver should be shared between Caroline and Pati, their half sisters. Later, in a Facebook messenger chat set up between the siblings, Samantha announced that the estate was to go to all seven siblings equally (ie including Pati and Caroline). It is unclear what Samantha now says she will do with the estate. It appears she wishes to keep the house with a view to it being, in her words, “generational wealth.” In cross-examination, Samantha repeatedly made a distinction between her father’s will and what she felt was right “in her heart” about whether all her father’s assets should go to her.
Witnesses
[16] Emora and Samantha were both required for cross-examination. In addition, Samantha called Grant Jamieson of Metro Finance who appeared under subpoena to address matters relating to some of Edward’s loan documents witnessed by Mr Jamieson.
[17] Gregory Hita (one of Edward’s sons) had sworn an affidavit on behalf of Emora. Samantha required Gregory’s attendance for cross-examination but he did not appear. His affidavit evidence is not simply routine and there are no exceptional circumstances justifying using the evidence. I did not grant leave to Emora to use the affidavit in evidence.6
Undue influence
[18] Mr Depledge, for Emora, submits that Samantha “unduly influenced her father to have him execute a will which favoured [her] to the exclusion of the deceased’s other children”. Although Emora acknowledges that there is no direct evidence of undue influence, she submits that Edward was vulnerable, and that the circumstantial evidence provides sufficient proof that undue influence occurred. He emphasises that there was no valid reason why Edward would wish to exclude his other children from his will.
5 Affidavit of Samantha Hita, 22 June 2023, at [169], (201.00461).
6 High Court Rules 2016, r 9.74(3).
[19] Samantha disputes that she in any way unduly influenced their father to leave all of his estate to her. She deposes that she left her father to write his will independently, the extent of her assistance only amounting to finding a free will template online.
[20] The principles relating to undue influence were recently summarised by the Court of Appeal in Gorringe v Pointon.7 They are:
(a)The burden of proof rests upon the party alleging undue influence.8
(b)A person alleging undue influence:9
… must show the alleged influence led to the making of the impugned transaction, and that the influence was undue in the sense that the transaction was not the result of the free exercise of an independent will on the part of the person at whose expense the transaction was made.
(c)“Pressure of whatever character can amount to undue influence if it overbears the will of the testator.”10
(d)Circumstantial evidence is sufficient to evidence undue influence. But:11
… it is not enough to show that others had the means and opportunity to unduly influence the deceased … The Court must be satisfied both that the power was exercised and that the will would not have resulted but for that exercise.
(e)For a court to be satisfied that undue influence has been proved, “it must be satisfied the circumstances raise a more probable inference in favour of what is alleged than not”.12
7 Gorringe v Pointon [2023] NZCA 42.
8 At [21].
9 At [24] citing Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 [Green v Green (CA)] at
[35] and [48].
10 Green v Green [2015] NZHC 1218, (2015) 4 NZTR 25-017 [Green v Green (HC)] at [101(b)] as cited in Gorringe v Pointon (CA), above n 7, at [25].
11 Hayden v Simeti HC Auckland P1042/92, 14 May 1993 at 12.
12 Green v Green (CA), above n 9, at [47].
(f)Obtaining independent advice can help establish that a person understood the decision they were making.13
(g)Even someone who is fully aware of and understands the decision they are making can still be subject to undue influence.14
[21] A party alleging undue influence in respect of an inter vivos gift may rely on an evidential presumption of influence if there is a relationship of influence and the transaction “calls for explanation”. The orthodox position is that this evidential presumption is not available in a challenge to a will on the grounds of undue influence.15 The High Court Judge in Gorringe observed that whether the orthodox position applies in will challenges is not settled in New Zealand.16 In the Court of Appeal in that case counsel confirmed that they were adopting the orthodox approach so the issue was not addressed.17
[22] Here, Mr Depledge’s submissions were based on the proposition, contrary to the orthodox approach, that there is an evidential presumption in the will context and that it was raised by the facts. For exposition purposes I will consider the claim in the framework he proposes. However, I do not need to resolve the legal issue of whether the orthodox position applies. That is because of my factual findings that, as discussed below, the undue influence claim fails on the facts, even on the basis that an evidential presumption is raised.
Evidential presumption
[23] Mr Depledge submits that Edward had a relationship of trust and confidence with Samantha, demonstrated by the substantial reliance Edward placed on Samantha assisting him with his financial affairs. Samantha plainly had a close and loving relationship with her father, and one she fully accepted involved trust and confidence.
13 Gorringe v Pointon (CA), above n 7, at [30].
14 Green v Green (HC), above n 10, at [100(h)] as cited in Gorringe v Pointon (CA), above n 7, at [30].
15 Carey v Norton [1998] 1 NZLR 661 (CA) at 663 per Thomas J and 668–673 per Keith and Williams JJ; Green v Green (HC), above n 10, at [101(a)]
16 Gorringe v Pointon [2022] NZHC 342 at [153].
17 Gorringe v Pointon (CA), above n 7, at [23].
[24] The transaction also called for explanation. There was no breakdown in family relationships between Edward and his other children. Emora was living with Edward in May 2019 when the will was made, having recently moved in with him. There is no evidence, certainly at that time, that Edward had anything other than a loving relationship with her. Nor was there evidence of a falling out with his sons. Those of Edward’s children who had valid passports went on a family trip to Rarotonga in July 2019. George and Mihaka (who did not) were invited and it appears they would have gone if they could. None of the children are financially well-off. Samantha was no less financially secure than her siblings.
[25] In my view, if an evidential presumption does apply in the will context, it is raised here: there was a relationship of trust and confidence and the transaction calls for explanation.
[26] In seeking to explain why Edward might have chosen to prefer her over his other children, Samantha said that he had showed preferential treatment to her over her lifetime, that she was his “Sambo” and was “Daddy’s girl”. She pointed to texts with her father, to his preparedness to guarantee a loan for her, and also to a trip to Japan that she had as a child to illustrate this. Samantha also said Edward “had always been there for me and promised we would open up a coffee shop in Raro and NZ after I repaid my loan.” It does appear from their text exchanges that Edward had a special fondness for Samantha. However, this does not seem to me to be of such overwhelming significance that it would lead Edward to wholly exclude his other children.
[27] Samantha said that she “would never see [Edward’s] estate go”. She said that Emora “is not in a financial position to ensure the estate is kept” but rather was “willing to see the estate be sold to get an advantage”.18 In oral evidence, Samantha said what she meant by these references is that she wanted to keep the Awakino Road house. It could then be a “generational asset19” to preserve her parents’ legacy. Samantha relied on her better position and competence to preserve the property as a
18 Affidavit of Samantha Hita, 8 November 2021, at [86], (201.00065).
19 Samantha’s terminology.
possible reason her father may have left all of his estate to her. She confirmed that this was just her own supposition, and she had no discussion with her father about this.
[28] Despite Samantha’s supposition as to why her father preferred her, it remains surprising that Edward did not recognise his other children as beneficiaries in his will. That is more so, given the recent death of his wife who had died intestate. In excluding the other children, in substance Edward was excluding them from any provision from either parent. Such an unexpected decision may be powerful evidence from which undue influence can be inferred.20
[29] However, while the transaction calls for an explanation, the evidence before me provides one. As I discuss below in the context of the secret trust claim, the evidence is that Edward was leaving the decision about what to do with his assets to Samantha. By making a will he was trying to avoid his children having the issues he had experienced with his wife dying intestate. Samantha had demonstrated herself to be financially responsible and competent. It is reasonable to assume he thought she would do the right thing by her siblings. Whether this was a trust obligation or only a moral one is a matter for the next cause of action but does explain the decision he made in his will. 21
[30] I now consider whether the other evidence relied upon by Emora demonstrates that Edward was subject to undue influence from Samantha in making the will. I first consider the contextual evidence followed by the specific circumstances in which Edward made his will.
Contextual evidence
[31] In support of the undue influence claim, Mr Depledge points to Edward’s vulnerability following Ngapoko’s death earlier that year. He suggests Edward was
20 Mahon v Mahon [2015] NZHC at 2143 at [29]–[30] citing Norton v Carey HC Auckland M191/95, 1 July 1996 at 54–55.
21 There is another potential explanation, which is that Edward did not appreciate the effect of the will. The children were named in the document but were left nothing. The template is in legal language and leaves Samantha “the residue”. It is possible that Edward regarded Samantha as being appointed to sort out his financial affairs as she had been doing that year rather than to receive all his assets. This scenario was not advanced by Emora. Accordingly, I consider it no further other than to say that it would require strong proof, and the former scenario is more likely.
impaired by his heavy drinking habit either generally or when he made his will. Edward is characterised as someone who needed help with his financial affairs who turned to Samantha for guidance after his wife’s death and became dependant on her.
[32] Edward was in full time employment at the time he died as a supervisor/yardman at Te Kuiti Meat Processors. There is no suggestion that Edward had any mental incapacity or deteriorating medical condition. He was only 61 when he died. This is not someone who was elderly and in failing health. Edward was a heavy drinker, but the evidence was that he had been a heavy drinker all his working life and that he would regularly drink a box of beer after work. In my view there is no sufficient evidence that Edward lacked judgement due to his drinking habit or that he was impaired when he made his will.
[33] Emora’s characterisation of her father as vulnerable is correct only in that he was evidently missing his wife very much and no doubt did seek support and assistance from his children. It is not only Samantha that provided this. To the extent that his recent loss made Edward susceptible to undue influence, it is evident that he had support from his other children as well. For example, Emora says she moved in with her father in April 2019 to ensure someone was living with him.
[34] When she was being cross-examined, Samantha tended to downplay the reliance her father placed in her and the assistance she gave him. However, I am satisfied she did provide considerable assistance to her father in dealing with his financial affairs. By Samantha’s own account, in February 2019 Edward asked her for assistance and guidance to help him organise his finances including dealing with the position following Ngapoko’s death.22
[35] In March 2019 Samantha took a day off work to accompany Edward to Westpac in Te Kuiti to deal with his and Ngapoko’s accounts.23 There were some bills overdue for payment that Ngapoko was responsible for getting paid. Westpac could not give access to Ngapoko’s KiwiSaver account so they were unable to have these funds released to help pay the bills. Either at the bank visit or subsequently, Samantha
22 Affidavit of Samantha Hita, 8 November 2021, at [59], (201.00061).
23 Affidavit of Samantha Hita, 8 November 2021, at [62], (201.00062).
helped her father set up automatic payments for his regular bills and assisted with rationalising his and Ngapoko’s several bank accounts. She also obtained the ability to access his accounts to ensure he kept on top of bills.
[36] After visiting Westpac, Samantha then continued on with her father to the Citizens Advice Bureau. They were told to return the next day to see a lawyer, which they did. The following day Edward and Samantha were told that a Court application for letters of administration would be required to access the KiwiSaver account. Samantha further assisted by obtaining advice from a family friend, Terry, who is a lawyer in Hamilton. Terry outlined what steps needed to be taken to obtain grant of letters of administration. He also assisted Edward with the many documents required for the application. I think it likely that Samantha assisted her father in this process also.24 The application was filed on or about 23 October 2019.
[37] Emora relies on Samantha’s significant involvement above as demonstrating that her father was reliant on Samantha to manage his financial affairs and that Samantha had taken over management of this. She submits that this supports the proposition that Samantha exercised undue influence over her father when he made his will.
[38] It is clear from the affidavit evidence that Samantha is a competent and capable woman. Her exchanges with her siblings before and after Edward died suggest she presented herself as the “organiser” in the family. In fact, at relevant times Samantha was strident with Emora about the financial management role she was performing for her father.25 I have no doubt that Edward recognised Samantha’s qualities and was grateful for all the assistance he could get. I also accept that she was very “hands on” with his finances, to the extent of having access to his accounts.
[39] Samantha emphasised that Edward had previously been well capable of managing financial dealings with Metro Finance and had a good credit history. After Ngapoko died he continued to work in a role that involved some responsibility.
24 For example, Samantha’s email address was the reference on the documents. As noted earlier, the documents were not accepted for filing and returned in late February 2020. Edward did not re- present them for filing in his lifetime.
25 Refer paragraph [77] and following below.
He continued to manage his own general affairs including the house. Samantha said, and I accept, that Edward continued to pay his own bills albeit Samantha was encouraging him to make sure he kept up with this, although most were being met through automatic payments she had established.
[40] Finally on the surrounding context for undue influence, Mr Depledge suggested to Samantha in cross-examination that she had exercised some form of undue influence in having Edward guarantee a $6,000 loan plus expenses totalling
$8,108.67 in favour of Samantha in March 2017. This is remote from relevant events and it is of no particular moment that a father was prepared to assist his daughter in this way. Samantha also emphasised that she gave her parents $1,000 the day the loan was approved and that she diligently made repayments until April 2021 when the loan was finally paid off.
[41] In summary, Samantha was perhaps overly micro-managing her father’s finances for him. She was certainly being a supportive daughter. Edward obtained help in the specific area of financial management, but he remained a capable and independent person in all other respects. I am not satisfied on all the evidence that Samantha’s involvement translated to a situation where Edward was overly dependent or reliant on Samantha in a way that made him susceptible to undue influence in who he wanted to leave his assets to.
[42] More significantly, I am not satisfied that Samantha exercised undue influence over her father when he made his will. I turn to the circumstances around this.
Circumstances around the will
[43] Samantha said that Edward came to visit her in Hamilton in May 2019, wanting her to help him make his will. She said he was adamant about wanting to do this. Samantha’s evidence, which she reiterated in cross-examination, was that she had not had a prior discussion with her father about his will. I accept her evidence on this.26
26 In her affidavit evidence, Emora referred to a meeting in February 2019 in Te Kuiti where it was discussed with Edward that he should get a will because of the problems that had emerged because Ngapoko had died without one. Emora accepted in cross-examination that this was a discussion with Gregory and was not clear that Samantha was present.
[44]Samantha describes the process that occurred when her father made his will:27
[122]I remember Dad expressing he wanted to do a will. At the time I told him lets [sic] go see Terry because he would help like he did for the letters of Admin application, but dad didn’t want to see him. He asked me to help him. I told him I don’t have a will and I wouldn’t know what to do. He repeated and asked me to help him find one.
[123]By dads demands, I helped him find one. I sat in front of the computer and google searched free wills; dad was standing behind me. I remember getting off the seat and walking away from the computer and expressing to dad, this is your will you do it. At the time dad became angry with me because I wouldn’t carry on.
[124]I remember at the time, Dad sat down at the computer. As I was walking away, I remember hearing dad clicking and tapping the keyboard and clicking some more.
[125]I was sitting in the dining room and dad was in the living room. I remember him saying to me he was leaving everything to me and that I was to sort his stuff. At the time I didn’t think nothing of it.
[126]A while later dad finished and told me to print it for him. I didn’t have a printer at the time, so I sent it to the printing place for dad. That night dad stayed at my house.
[127]On 18 May 2019, Dad signed his will before Neil Bleakon a member of the court for the Justice of the Peace and Stephanie Simon. I was not present the time of dad signing his will.
[128]After this event, dad kept his will and drove back to Te Kuiti with it.
[45]She goes on to say that on Christmas Day 2019 at her father’s house:
[140] … Dad gave me his will. He didn’t say anything, and we hugged.
[46] Emora deposed that her father would not have been able to complete a will online, and it was suggested to Samantha that she was more involved than she admitted. However, among other work duties, Edward’s job included data input, record keeping, stock taking and staff supervision and training. The nature of Edward’s work suggests to me that he was not as technologically challenged as Emora sought to contend. As Samantha submits, Edward was also clearly proficient with some media, given the text chats between the two of them that are in evidence. I consider he was capable of completing the online will once Samantha located the website.
27 Affidavit of Samantha Hita, 22 June 2023, (201.00455–201.00456).
[47] Edward had no legal advice or assistance in preparing his will, and no one independent was present. However, Samantha was firm and credible in her evidence under cross-examination about the circumstances surrounding the will. I accept her evidence. She did not seek to exercise undue influence over her father. Nor was Samantha’s father acting in accordance with any direction from her. He freely made the decision to name Samantha as the sole executor and residuary beneficiary.
[48] For completeness, Emora refers to a page from a diary extract appearing on 5 March 2019 which she considered to be her father’s but not necessarily written that day. 28 The note is headed “Will Truck/car” and stated that each child was to receive one set of keys each with the truck and car to “remain the property of 40 Awakino Rd”. It further stated that “wear and tear is the responsibility of all children”. At the foot of the diary entry was recorded that “Both vehicles to stay with Home”. Emora said that this showed that her father wanted his vehicles to be kept with the house for the family as a whole.
[49] There is a dispute as to who wrote this diary entry. Samantha said she had not seen the note until after her father’s death and cross-examined Emora to the substantive effect that Emora had written it after the fact to support the current claim.29 In re-examination Emora confirmed that she believes the writing be her father’s. She was shown writing below the entry which looks slightly different and her evidence in re-examination was that she thought that was her father’s writing also. Samantha’s evidence was that the diary was in fact her book, although she and others including Edward had written in it.
[50] On balance, I consider it more likely than not that Edward made the note, but my conclusion on that issue has no bearing on my decision. That is because, irrespective of the note, I accept Samantha’s evidence as to the circumstances surrounding her father making his will as discussed above. Accordingly, whatever he
28 Affidavit of Emora Hita, 11 June 2021, Exhibit B, (201.00019).
29 For example, Emora was cross-examined concerning when she learned about her father’s life insurance. As I understand, it was being suggested that the fact that the note did not refer to the life insurance supported that it was Emora who wrote the note prior to learning of that other asset, and that if Edward had written the note it would have included what he wanted to do with the insurance.
may have written in the book is immaterial to my conclusion that he was not under undue influence when he made his will in May 2019.
[51] Having considered all the evidence and hearing from Samantha in cross-examination, Samantha has discharged any evidential presumption against her. The overall onus of establishing undue influence remains with Emora. I am not satisfied that undue influence is established on the facts.
Secret Trust
What is a secret trust?
[52] A secret trust is a trust arrangement between a will maker and a trustee, made to take effect after death, that aims to benefit a person/s without this appearing in the formal will. The property is given to the trustee in the will, and he or she is subject to trust obligations to distribute the property in the manner that has been communicated. To establish a secret trust the claimant must show that the testator intended to form a trust, that this intention was communicated to the trustee, and that the trustee expressly or tacitly agreed to accept the obligation.30 The obligation to hold property on a secret trust may be communicated at any time before the testator’s death.31
[53] The basis of a fully secret trust is that it operates outside the will. On the face of the will the property is given to the trustee for their own benefit. However, a secret trust fastens on the property in the hands of the person named in the will. It is not the person named in the will who is entitled to the estate but rather the beneficiaries of the secret trust.
[54] Importantly, to establish a secret trust the claimant must establish that the will maker intended to create a trust obligation binding in law. That means an obligation binding by the authority of the Court and subject to the Court’s sanction. This is to be contrasted with an obligation merely affecting the conscience of the person named in the will, such as where the obligation is no more than a moral or family duty.32
30 Blackwell v Blackwell [1929] AC 318 (HL) at 334 as applied in Brown v Pourau [1995] 1 NZLR 352 (HC) at 367.
31 In re Karsten (decd), Edwards v Moore [1953] NZLR 456 at 461.
32 Brown v Pourau, above n 30, at 368–373 applying Re Snowden [1979] Ch 528.
[55] The claim that there is a secret trust can be established on the ordinary civil standard (balance of probabilities). But, as a claim over the property of a deceased person, the allegation is to be assessed with great care.33
[56] The theoretical basis of secret trusts is not settled. The debate turns on whether a trust of this kind is an express or a constructive trust. The characterisation has significance because a constructive trust of land is excepted from the requirement of written evidence, a formality otherwise required for the disposition of land (other than by will). In Brown v Pourau Hammond J noted that whatever the correct theoretical explanation, the reported English decisions recognise that a fully secret trust of land is valid independent of any requirement of written evidence. He went on to consider that the best characterisation of a secret trust in New Zealand law is of a remedial constructive trust. 34
[57] Fortunately, again, I do not need to get distracted by the jurisprudential issue. On the view I take of the evidence, Emora has not discharged the onus on her to establish a secret trust.
No secret trust established
[58] Because Edward involved no lawyer or other third party in the preparation of his will there is no evidence from any third party as to what he said or intended. The evidence that exists consists of:
(a)affidavit evidence by Samantha as to what she deposes was said at the time the will was prepared;
(b)affidavit evidence by Samantha as to what she asserts she said to Emora in her father’s presence subsequently;
(c)affidavit evidence by Samantha and Emora as to statements made by Samantha after her father’s death;
33 At 369–370.
34 At 368.
(d)Facebook messenger chats between Samantha and Emora to which Edward was a party;
(e)Facebook messenger chats between the siblings after Edward died that throw light on what was said during Edward’s lifetime; and
(f)cross-examination.
[59] I have already referred to the evidence at the time of the will. Samantha says Edward told her that he had left everything to her for her “to sort his stuff”. That provides no basis for the imposition of a binding obligation at law, and certainly not one with any certainty.
[60] Samantha deposed to a discussion at her father’s house in Te Kuiti in March 2020:35
[148] At the time, I remember Dad, [Emora] and I were in the shed when discussions of dads will was brought up. I remember saying to Emora in front of dad, that he’s left everything to me and for me to decide when he died. At the time Emora was coherent with me and negotiations were made to ensure dads name was kept in the clear whilst she and her family continued living at dads. An agreement between her and dad was made [as to Emora paying board and bills] and witnessed by me.
[61] This evidence is the high point of evidence of a trust obligation, although it gives complete discretion to Samantha as to how the estate should be divided when Edward died. Notably, Emora denies that she was told about the will prior to Edward’s death, so in substance denies that this statement was made. In a subsequent affidavit, Samantha appears to describe what was said to Emora in front of her father on this occasion in different terms as a statement that “dad ha[d] left everything to me and that I was to sort all his stuff”.36
35 Affidavit of Samantha Hita, 22 June 2023, (201.00458). Samantha also deposed by affidavit affirmed on 8 November 2021 at [96] that “I believe the deceased and the plaintiff had discussions where the deceased informed the plaintiff about his estate and that it will be left to the defendant to take care of and decide.” (201.00068). This is just her speculation so does not have any weight.
36 Affidavit of Samantha Hita, 25 July 2023, at [20].
[62] Whether or not Edward had said to Samantha on previous occasions that he had “left everything to [Samantha] to decide” or this was stated by Samantha in his presence, I find that this does not give rise to more than a moral obligation. It suggests that Edward was leaving Samantha to make responsible decisions when he died but falls short of a trust obligation that was intended to have the sanction of the Court. There is also a lack of specificity or certainty which, in my view, undermines that such an obligation was intended.37 None of the above evidence supports a trust obligation on the balance of probabilities, let alone provides clear evidence of that. Notably the trust obligation pleaded is that Samantha held the estate on trust for herself and her four siblings equally. The evidence above does not support that.
Events after Edward’s death
[63] Nor does the evidence of events after Edward’s death support the existence of a secret trust.
[64] Emora deposed that at a family meeting on 30 December in the days after Edward’s death:38
[52]Sam called a meeting with all the siblings, and opinions were discussed about what we thought Dad wanted for his will, and our thoughts about Caroline and Pati as siblings, and whether they get any of Dad’s estate.
[53]Sam produced Dad’s will and said what I, Greg, George, and Mihaka were getting from Dad’s will. She said George was to get the title of the house, me both cars, Gregory and Mihaka the tools. This is inconsistent with what the will says.
[65] Emora said she read the will several times, and felt angry because she had only then seen that Samantha was the executor and sole beneficiary. She saw that the will was signed while she was living with her father, which upset her. She said she had heated words with Samantha.
[66] Samantha also describes this meeting with her siblings. Her account is similar:39
37 There would also be issues whether any trust failed for lack of certainty.
38 Affidavit of Emora Hita, 11 June 2021, (201.00009).
39 Affidavit of Samantha Hita, 22 June 2023, (201.00461).
[169]30 December 2020, I asked all the sibling to meet with me in the shed, we were all there including Sista Pati. I showed them dads [sic] will and told them dad left everything to me and for me to sort all his things.
[170]I asked each sibling if they thought dads will was his and what their thoughts about including mum’s children’s sista Caroline and sista Pati.
[171]I heard everyone speak, and confirm each sibling acknowledged dads will to be his. 3 out of 5 of us agreed mum’s children should be acknowledged. Emora disagreed and Greg said whatever Emora does I agree.
[172]At the time, I expressed what was in my heart at that moment. I openly said dad left everything to me, but I think George should get the house, Emora should get the cars, Greg and Mihaka should get the tools and any money dad had, and any money from mum’s kiwi saver [sic] should be shared between Carol and Pati. In this moment I left out myself, I was grieving. I wanted Dad.
[67] However, Samantha rejected that Emora had appeared angry or that she had expressed that anger. This reflects her evidence, referred to at [62], that Emora already knew that her father had left everything to Samantha.
[68] Emora also refers to a Facebook messenger group created in January 2021 in which Samantha was asserting that this previous family meeting had resulted in a majority vote of the five siblings that Caroline and Pati were to get an equal share of her father’s estate. Samantha said in this post:40
The estate at hand goes to US 7 CHILDREN equally.
[69] The above statements by Samantha do not support Emora’s claim of the secret trust pleaded, which is that the estate was left on trust equally for the five siblings.
[70] In March and April 2021, Samantha and her siblings exchanged further heated messages. I do not have the complete set, so the precise initial context for the March exchange is unclear. It is evident that Emora, George and Gregory were asking questions about the management of the estate and wanted access to the house. Samantha reacted defensively and referred her siblings to the will. She insisted that:41
40 Affidavit of Emora Hita, 11 June 2021, Exhibit E, (201.00029).
41 Exhibit F, (201.00030).
… I have Dad and Mum behind me and that is all that matters!!! Im not doing right by this family, IM DOING RIGHT BY MY DAD!!!
[71] Samantha repeated words to that effect in other responses, repeatedly relying on the will. On April 3 in one exchange she recorded:42
There is no reasoning with this family as i have told you I AM THE EXCECUTOR! DAD CHOOSE [sic] ME!! It is my right to do what is best and i will tell u all i have been and continuing to do so!!!
[72] There were threats of legal action in response to Samantha’s messages. In one message, dated 3 April 2021, Samantha stated:43
Its not about going to court its about recognising dads last wishes, all in which you all fail repeatedly to comprehend our fathers last [testament] is recorded and is a legal document @George Hita your lawyer should have informed you many weeks ago I will do what dad told me to do and ensure all of you get your share including dads other 2 children he acknowledge @Emora Hita you have read part of the piece of paper (referring EWB Hita will) all of you are class beneficiaries I [do not] deny that. Please continue reading the following paragraphs and [yourself] and the other beneficiaries will understand what going to court will do for you, the siblings and myself! I am continuing this journey of concluding dads (EWB HITA) last [testament] on the grounds as executor rights! Those who choose to go against I will not hesitate to pursue [lawful] matters [until] I have completed my duties.
[73] Samantha was not specifically questioned in cross-examination on the above response. However, she was questioned on whether her father left her instructions as to what he wanted done with his estate. She maintained that he had left everything to her and that it was only according to her heart that she felt any obligation to her siblings. Mr Depledge further tested Samantha on the basis that her father said his estate should be divided equally between his children and stepchildren. Samantha insisted that she proposed this “by [her] heart” and neither this nor the 30 December indication of the split of assets came from her father.
[74] The 3 April message could be read as Samantha having previously been told that the estate would go to each sibling equally. However the message also needs to be read in the context of: Samantha’s earlier proposals following her father’s death which suggest she thought it was for her to decide what happened to the assets (set out
42 Exhibit F, (201.00035).
43 Exhibit F, (201.00036) (emphasis added).
above); her responses in cross-examination as to what her father said to her (which I accept); and also the misconceptions it appears Samantha had about owning the assets under a power of attorney even before Edward died (discussed below). In my view Samantha’s statement that “I will do what dad told me to do and ensure all of you get your share including dads other 2 children he acknowledge[d]” was not in reference to a conversation she had with Edward in which a trust obligation was created. Rather, it reflects Samantha’s understanding that her father had left the distribution of the estate for her to decide. Samantha’s view that the estate should be split among the seven children, as expressed in her message on 3 April, was independent from any instruction from her father.
[75] I therefore accept that Edward had not stipulated how he wanted Samantha to distribute his assets. The fact that Samantha expressed inconsistent proposals as to the distribution of the estate underlines that these were not based on what Edward had told Samantha to do but rather arose due to Samantha determining how the estate should be distributed.44
Samantha’s understanding of the effect of the will
[76] Samantha was cross-examined on her affidavit evidence that she had referred to the will as a “living trust”.
Q.If we turn to the next page which is 201.00460 at paragraph 159 you say these words: “I had informed Emora of dads will on multiple occasions, and the lawful extent of it. Whilst dad was alive, I viewed dads will as a living trust at the time and kept informing Emora of this.” That's what you say, isn't it?
A. Yes.
Q. Now you say a living trust, what did you mean by that?
A.Because this is even after Dad executed his Will and I myself thought that it was a living trust however it wasn’t. The Will only came into effect after the date of Dad’s death.
[77] Samantha’s reference to telling Emora there was a “living trust” is made in her evidence in the context of discussing the arguments she was having with Emora about
44 In Brown v Pourau, above n 30, the alleged secret trustee had said after the testator’s death that the land was left “for the family”.
Emora not paying her way at her father’s and Samantha’s concerns this would affect his ability to pay his bills.
[78] As I noted earlier, tensions had been heightened between Samantha and Emora about Emora and her family living with Edward. Samantha set up a Facebook message chat between her, Emora and Edward on which the two sisters argued acrimoniously about the board and bill payments. Among the statements Samantha made on this chat were that:45
I am his financial accountant you just pay board, don’t get involved with his finances as it is none of your business.
[79]And later on 21 October 2019:46
I own the house!!! I am dads power of attorney!
Before you went down there dad was in credit of everything now he’s in debt!
[80] The two of them had a verbal fight in November 2020 with both saying hurtful things, all in front of their father. As a result of this Emora and her family moved back to Hamilton.
[81] Prior to Emora moving out, she and Samantha exchanged a torrid set of messages. Among other things Emora asserted that:47
... u went behind my and the rest of siblings back to get EPA of dad house and assets … Your the only one taking advantage of dad for what ur own personal gain. I will be seeking legal advice tomorrow about that document I signed about dad having full power over our mother’s estate as u mislead me saying it was for mum’s kiwisaver and it was all for u. …
[82] The reference to the document signed was to a consent all siblings signed for Edward’s application to obtain letters of administration of Ngapoko’s estate, which had been rejected for filing. Samantha responded:48
As for the documents you all signed. It was never put to use? There was no misleading you all as mums kiwi saver was never processed through court? I stopped it! Because I realised thats mums money to spend NOT
45 Affidavit of Emora Hita, 11 June 2021, Exhibit F, (201.00437).
46 Exhibit F, (201.00440).
47 Affidavit of Emora Hita, 11 June 2021, Exhibit D, (201.00026).
48 Exhibit C, (201.00025).
DADS! or anyones! Im not touching none of mums things no more it can stay with the government for all i care!!! … As for dads assets, he wanted me to have it to take care of his AND mums financials because he trust me and loves me dearly. We did this whilst we were with Terry, and what ever dad chooses to do with his things is none of your business or any other siblings!!!! Please do find your own house asap mora it is for the best!
[83] Samantha was not cross-examined on this message. However, I note that there is reference to “We did this whilst we were with Terry”. This is a reference to the family lawyer who had assisted with the letters of administration. Because there is no power of attorney and indeed no relevant document other than the will, this statement is difficult to interpret (or is a mistaken reference) as it is clear Terry was not involved in the making of Edward’s will.
[84] This exchange and oral evidence shows that Samantha did not appreciate the will only took effect on her father’s death. Emora’s evidence that she only learnt about the will after her father’s death is consistent with Samantha having previously characterised what she held as a power of attorney, on the basis of which, she thought she “owned” her father’s assets. It is unsurprising that Emora failed to appreciate that Samantha was left everything by the will when Samantha was using that type of terminology.
[85] The fact that Samantha is referring to the will granting her power of attorney not a separate power of attorney supports that there was no secret trust obligation. It shows her confusion as to what Edward had done and is consistent with Edward not having given any specific instructions. Because Edward was also on the chat where the messages were exchanged, it also raises the question whether Edward understood when a will becomes effective. What he plainly did know is that he should have a will and that he needed to appoint someone to sort his affairs after he died.
[86]I asked Samantha about the references to a power of attorney:
Q… I have seen a reference in the material to you having your father’s enduring Power of Attorney, is that correct?
A.Yes. Like I said before, I thought that there was no enduring Power of Attorney, it was just reference to the Will that I thought at the time was a living trust, so because Dad had left everything to me I thought that was a Power of Attorney, but there was no other documents that
were filled out as a Power of Attorney or as a living trust. It was just purely from the Will.
Q.So just pausing on that about the living trust. When your dad said to you: “I have left everything to you” and that you are to sort his stuff, did he say anything other than that?
A. No.
Q.And what did you take from him to be meaning he said: “You are to sort my stuff”?
A.Just that when he died I was to sort all of his stuff, like how he was with Mum when she died.
Q. But I think you said that you actually thought you had a role from that time did you, you know, the living Will?
A.Oh, not necessarily a role, it was just ‘cos Dad would always contact me and inform me of what was happening down in Te Kuiti. It wasn’t necessarily a role.
[87] My view that no secret trust exists is confirmed by Samantha’s answers to these questions. She was not placed under a trust obligation, nor one with any degree of certainty.
Conclusion
[88] In summary, the secret trust claim fails. The particulars of the trust pleaded are that Edward’s intention was to leave his estate to his children equally and that this was the trust communicated to and accepted by Samantha. There is no evidence of a trust with that content. The only evidence of events prior to Edward’s death is that Edward advised that he was leaving everything to Samantha to sort his stuff; and Samantha’s statement to Emora (which Emora denies) in front of her father that she was to decide. Nor are any statements made by Samantha after her father’s death consistent with such an intention. The first involved an unequal distribution among the children (and excluded Samantha, she says inadvertently in the moment). The second was a proposal that the estate be distributed among his children and stepchildren equally. Both are the result of Samantha determining how the estate best be divided rather than Samantha following any instruction from her father.
Family Protection Act 1955
[89] Mr Depledge submits that by completely excluding Emora from the will, Edward breached his obligation to provide proper maintenance and support as required by him under the Act. He submits that to rectify this, an award of 20 to 30 per cent of the estate would be typical in cases such as this—where the estate is “large” and the claimant has financial need. Samantha, however, submits that Emora’s claim is “disbarred” due to cl 10 of the will relieving Edward from the “burden” required by s 4 of the Act. Mr Depledge submits that irrespective of cl 10, Edward’s duty under s 4 remains. In this regard, Mr Depledge is correct. A claim for breach of moral duty is not prohibited by the terms of the will.
[90] I note that s 4(2) of the Act enables this Court to treat Emora’s application as an application from anyone entitled to claim under that Act. That is, the Court could treat Emora’s application as also being an application made by George, Greg and Mihaka. However, given that they took no part in the proceeding,49 and I have limited evidence of their circumstances, it is appropriate to treat Emora’s application as solely her own.
[91]Section 4(1) of the Act provides as follows:
4 Claims against estate of deceased person for maintenance
(1) If any person (referred to in this Act as the deceased) dies, whether testate or intestate, and in terms of his or her will or as a result of his or her intestacy adequate provision is not available from his or her estate for the proper maintenance and support of the persons by whom or on whose behalf application may be made under this Act, the court may, at its discretion on application so made, order that any provision the court thinks fit be made out of the deceased’s estate for all or any of those persons.
[92] The principles as to the application of s 4(1) are well settled. As outlined by Randerson J in Vincent v Lewis the relevant principles are as follows:50
49 As discussed earlier, Gregory did make an affidavit in support of Emora but did not appear for cross-examination and the message exchanges show he and George did not want to be further involved. Samantha and Mihaka live (or lived) together.
50 Vincent v Lewis [2006] NZFLR 812 (HC) at [81]. See also Little v Angus [1981] 1 NZLR 126 (CA) at 127; Williams v Aucutt [2000] 2 NZLR 479 (CA) at [33], [35], [37]–[39], [52] and [70]; Auckland City Mission v Brown [2002] NZCA 33, [2002] 2 NZLR 650 at [35]–[36]; Flathaug v Weaver [2003] NZFLR 730 (CA) at [32].
(a)The test is whether, objectively considered, there has been a breach of moral duty by Edward judged by the standards of a wise and just testator.
(b)Moral duty is not restricted to mere financial need but encompasses moral and ethical considerations and the “recognition of belonging to the family and of having been an important part of the overall life of the deceased”.51
(c)The size of the estate is a relevant consideration.
(d)It is not sufficient to merely show unfairness. It must be shown in a broad sense that the claimant is in need of maintenance and support, although this does not require financial necessity.
(e)Disparity between beneficiaries is not sufficient to establish a claim.
(f)If a breach of the moral duty is established, it is “not for the Court to be generous with the testator’s property beyond ordering such provision as is sufficient to repair any breach of moral duty”.52
(g)The Court’s power does not extend to re-writing the will because of unfairness. An “award should be no more than is necessary to repair the breach by making adequate provision for the applicant’s proper maintenance and support”.53 This principle applies irrespective of whether the claim is based on financial need.54
[93] As noted above, the size of the estate is a relevant consideration. Although the issue of breach of moral duty must be assessed with reference to the circumstances present at the time of death, if the Court finds that there has been such a breach, it may
51 Williams v Aucutt, above n 50, at [52].
52 At [70].
53 Fisher v Kirby [2012] NZCA 310, [2013] NZFLR 463 at [119].
54 Henry v Henry [2007] NZCA 42, [2007] NZFLR 640 at [58].
have reference to factors arising later when determining the appropriate award.55 Thus, for example in Black v Black Whata and Gendall JJ assessed the value of the deceased’s estate using the present value of her home.56 Therefore, when considering the size of Edward’s estate, I adopt the present value of the estate as estimated at [12].
[94] Emora is completely excluded from the will. In my view, Edward has breached his obligation under s 4(1) of the Act. The following cases support Emora’s submission that she is entitled to some provision.
[95] In Scott v Garnham a mother excluded one of her children from her will.57 Cooke J determined that this resulted in unfairness not just because the child was excluded, but rather because:58
… The lack of adequate provision [arose] from the irrational exercise of favouritism by the deceased, and [raised] what has sometimes been called a recognition award. To be more precise about that kind of award, it seems to me that it can arise when the estate is being divided between family members with equivalent claims for maintenance, such as siblings, and where there is a failure to properly make provision for one party who is in the same position from those who benefit without any rational basis. That can involve inadequate provision under s 4.
[96] In Williams v Aucutt, the testator’s estate was worth $920,000.59 She left approximately 95 per cent of her estate to one daughter and only five per cent to the other. The reason for the disparity was outlined in the will—one daughter was of limited financial means, the other wealthy. Both the High Court and the Court of Appeal agreed that this amounted to a breach of the testator’s moral duty and the Court of Appeal allowed the claimant an additional $50,000.
[97] While these cases support Emora’s submission that Edward breached his moral duty and she is entitled to provision from the estate, I do not agree with Mr Depledge that the estate can be characterised as “large” or that 20 to 30 per cent should be
55 Lindsay Breach Nevill’s Law of Trusts, Wills and Administration (14th ed, LexisNexis, online ed, 2023) at 593.
56 Black v Black [2014] NZHC 1478 at [66].
57 Scott v Garnham [2021] NZHC 592.
58 At [33].
59 Williams v Aucutt, above n 50.
ordered to be provided to Emora. Edward’s estate is a modest estate consisting mainly of the family home.
[98] In my view, Howarth v Howarth is most similar to the present facts.60 There, the deceased left his estate entirely to his youngest son, excluding his oldest two children. The estate was modest, valued at $335,000—the majority of which consisted of a half share in the property the deceased shared with his wife. None of Mr Howarth’s children were of significant financial means and the “estate was insufficient to provide much in the way of maintenance for his children”.61 Brewer J nonetheless accepted that Mr Howarth’s failure to provide for two of his children was a breach of his moral duty and awarded them $60,000 (approximately 14 per cent of the value of the estate) each.62 In my view, an award of similar proportion is appropriate here.
[99] This is supported by the fact that in Scott (discussed at [96]) the claimant was entitled to 10 per cent of her mother’s estate for a “recognition award”. The facts here are somewhat analogous. Emora (and her siblings apart from Samantha) have been arbitrarily excluded from their father’s will. A distinguishing feature, however, between the present case and Scott is that Emora is in financial need. At the time of the will Emora was unemployed. Although she has since gained employment, her salary is modest ($52,000) and her sole asset, a car worth approximately $10,000, is significantly offset by her debt of around $75,000. An award of more than 10 per cent therefore seems appropriate.
Emora’s conduct while she was living with Edward
[100] Samantha made clear at the hearing and in submissions filed in advance that she was not relying on the proposition that Emora’s claim for provision from her father’s estate should fail due to disentitling conduct. However, Samantha relied upon alleged misconduct of Emora while she was living with her father to say that Edward had in fact provided for Emora during his lifetime, so further provision by way of a claim under the Act was not justified.
60 Howarth v Howarth [2021] NZHC 2521.
61 At [142].
62 At [151].
[101] Specifically, Samantha asserts that while Emora was living with her father she was receiving Work and Income New Zealand (WINZ) benefits to pay for rental but was not passing this on to her father. She appears to suggest that the WINZ rental claims were inflated, and that Emora submitted a document that she prepared and signed but purporting to be from her father to obtain the benefits. Samantha refers to her father expressing concern about Emora wanting him to help her with WINZ claims at the time. She further says that Emora travelled to Rarotonga with the rest of her family in July 2019 while she was receiving benefits from WINZ. Samantha deposes that transactions through Emora’s account that might otherwise suggest Emora was paying some rent and expenses to her father, are to an account named “E Hita No 5” which Samantha says is not an account in her father’s name. Samantha suggests it is an account of Emora’s, who has the same initials.
[102] Samantha annexes various text messages that show she lent money to her father in units of around $30 from time to time. She says that Emora should have paid Edward $18,000 for board during her time living there from April 2019 until November 2020, yet did not do so and that is why she says her father asked her for financial assistance. There is a $200 deposit into Mr Hita’s account on 1 November 2019 which Samantha suggests her father put in himself under the name E Hita. Samantha further says that her sister was taking advantage of her father by accumulating a new vehicle, having her three older children live in his house, making bills go over $700 and not paying any money to him for board on a weekly basis.
[103] I accept that the E Hita No 5 account was not Edward’s account but another account of Emora’s. The transfers back and forth in the financial statements start before she was living at her father’s and continue after his death. The extensive number of transfers back and forth between the two accounts suggests she used it as some form of holding or savings account. Having said that, I do not consider I can make a conclusion as to precisely what Emora contributed to bills and board while she was at her father’s on the basis of reviewing this account. In any event, I do not need to.
[104] Whether or not Emora failed to pay her father rent and expenses is of little relevance for the purposes of her claim. The Courts have been clear that in
Family Protection Act claims it is incorrect to compare the provisions for various siblings during the deceased’s lifetime. In Family Protection Act cases, support provided during a deceased’s lifetime generally only becomes relevant in those rare instances where such gifts may have depleted an estate to the point where it may not be sufficient to meet the moral duty of a testator.63 That is not the case here.
Conclusion
[105]My conclusions are as follows:
(a)The undue influence claim is not established on the facts.
(b)There is insufficient evidence for me to conclude that Edward intended to leave his estate to Samantha subject to a secret trust.
(c)I dismiss Emora’s claim for recall of probate and for the grant of letters of administration.
(d)Emora succeeds in her Family Protection Act claim. Edward was in breach of his moral duty to Emora. I direct a payment from the Estate of $55,000, which equates to some 15 per cent of the net Estate.64
[106] I direct that the plaintiffs file submissions on what costs orders are appropriate within 14 days. The defendant is to file her submissions on that issue within a further 14 days.
[107] As a postscript, I am left with residual questions as to whether Edward intended what his template will provided. I do not consider the evidence goes so far as to allow me to have concluded the will was invalid or to be impugned on that ground, and this was not argued in any event. However, it is a pity that Edward did not seek some legal advice or assistance such as from a Community Law Centre or Citizens Advice Bureau in making his will rather than using a “do it yourself” online form. That would have ensured that the effect of what he was doing by his will was explained to him. Also, it
63 Smith v Perry [2021] NZHC 2767 at [39]–[40] and references cited therein.
64 Refer [12] above.
may potentially have avoided the subsequent family fall out, including because there would have been less scope for a contest on the issues addressed in this proceeding.
Anderson J
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