Joan v Mary - [2012] NZHC 1830

ORDER PROHIBITING PUBLICATION OF ANY IDENTIFYING PARTICULARS OF DECEASED PERSON, PLAINTIFF OR DEFENDANTS.

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV 2011-412-000214 [2012] NZHC 1830

IN THE MATTER OF Estate of PAULINE

BETWEEN JOAN Plaintiff

ANDMARY AND CHRISTINE AS EXECUTORS AND TRUSTEES First Defendants

ANDCHRISTINE AND [BLANK] TRUSTEES LIMITED JOINTLY AS TRUSTEES OF [CHRISTINE'S] FAMILY TRUST
Third Defendants

Hearing: 22 June 2012

Counsel: P Gibson for Plaintiff
S Hembrow for Defendants

Judgment: 31 July 2012

JUDGMENT1 OF WHATA J

[1] Joan, Mary and Christine are sisters. They come from a very troubled family background of poverty, sexual abuse, neglect and estrangement. In May 2010 their mother died. She left Joan a 10% share of her estate and the balance was divided in equal shares between Christine and Mary. Christine and Mary were also appointed executrices. In August 2010 Joan advised Christine that she intended to issue
proceedings under the Family Protection Act 1955 to claim an equal third share.

1 This is an anonymised version of the original judgment.

JOAN V MARY AND CHRISTINE AS EXECUTORS AND TRUSTEES HC DUN CIV 2011-412-000214 [31
July 2012]

Discussions ensued with no result. In January 2011, without further recourse to Joan, Christine allocated the estate funds in accordance with the will. Joan commenced proceedings in March 2011. Joan has since managed to come to an agreement with Mary, but not with Christine. This took Joan’s share of the estate to about 21%.

[2] The upshot of all of this is that Joan makes the following claims:

(a) A claim against the estate for a 33% share of the estate’s assets.

(b)A claim against Christine for breach of her fiduciary duty as a trustee and executrix by distributing the estate’s assets with knowledge of Joan’s claim.

(c) A claim for relief by way of tracing and following orders under ss 49(1)(b) and 49(3) of the Administration Act 1969 in respect of those funds improperly disposed of by Christine.

[3] There are additional claims for costs.

Facts

[4] The following background facts are not disputed, except where indicated.

[5] Pauline died on 26 May 2010. The estate was modest – net assets of around

$136,524. Under the will, the plaintiff was given a 10% share, and the balance of

90% was to be divided in equal half shares between Christine and Mary who were (a) jointly executors of the will, and (b) severally beneficiaries of the estate. Notice of an intention to file a claim against the estate by the plaintiff was given on 19
August 2010.

[6] Various offers and counter offers to settle the claim were made without success. Christine says that an offer was made in October 2010, but no response was received by January 2011, at which time Christine was permitted by law to distribute

the estate. Accordingly, without prior notice, the executors distributed all of the estate with effect from 11 January 2011. The plaintiff was given notice of that distribution by letter through her solicitor. The sum…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Joan v Mary

Details

AGLC: Joan v Mary [2012] NZHC 1830
Case: [2012] NZHC 1830
Decision Date: 31 July 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Dunedin Registry, Joan, the daughter of the deceased Pauline, brought an action against Christine and Mary, who were named as executors and trustees of the estate, and Christine and [Blank] Trustees Limited, as trustees of Christine's family trust. Joan claimed a 33% share of the estate, alleging that Christine breached her fiduciary duty as trustee and executrix by distributing the estate's assets without notice of Joan's claim. Joan also sought tracing and following orders for the funds improperly disposed of by Christine. Joan and Mary eventually settled, resulting in Joan's share of the estate being about 21%. The court found that there was a breach of the moral duty of a parent to make adequate provision for a child, and that an additional 10% of the estate should have been allocated to Joan to properly reflect the combination of need and the wider performance of the moral duty of repair. The court held that Christine breached her duty as executrix by distributing the estate while there was a potential claimant, but that Joan's delay in lodging her claim mitigated the egregiousness of the breach. The court awarded costs on a 2B basis in favor of Joan up to the date of the agreement with Mary.

Orders