Johns v Lord - [2021] NZHC 281

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-2218

[2021] NZHC 281

IN THE MATTER of the Family Proceedings Act 1980 and the Property (Relationships) Act 1976

BETWEEN

STEPHEN HENRY CYRIL JOHNS

Appellant

AND

CHRISTOPHER NORMAN LORD AND COLIN CLIVE HOLLOWAY

First Respondents

GAIL PATRICIA JOHNS

Second Respondent

Hearing: 18 February 2020

Appearances:

SRJ Hamilton for the Appellant DRI Gay for the First Respondents

G C Jenkin for the Second Respondent

Judgment:

25 February 2021

JUDGMENT OF GORDON J

This judgment was delivered by me
on 25 February 2021 at 3.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Conveyancing Centre, Auckland

Craig Griffin & Lord, Auckland

Counsel:S Mitchell, Auckland DRI Gay, Auckland

JOHNS v LORD [2021] NZHC 281 [25 February 2021]

[1] This is an appeal against a decision of Judge Burns in the Family Court at Auckland1 refusing an application by the appellant, Stephen Johns, for further provision from the estate of his late father, Lewis Johns.2

[2] The first respondents, Christopher Lord and Colin Holloway, are the executors of the estate of the late Mr Johns (the executors). They oppose the appeal. The third respondent, Gail Johns, is Mr Johns’ widow. Mrs Johns also opposes the appeal.

Factual background

[3] Mr Johns was a cabinet maker and operated a successful cabinet making and kitchen fitting business, Johns Kitchenmakers Ltd, for many years. He and Mrs Johns married on 21 July 1979. It was a second marriage for both of them. Their relationship had started in approximately 1973 and they first lived together in 1976. They were still together when Mr Johns died on 26 September 2017, aged 87 years, although Mr Johns had been a permanent resident of a residential care home since late 2014. This was a consequence of two severe strokes he suffered in early 2006 and Mrs Johns’ inability to continue to care for him at home as she had done for around eight years after the strokes. Mrs Johns is now aged 77 years. She and Mr Johns had no children together.

[4] Stephen is one of three children of Mr Johns’ first marriage. He is now aged 60.

[5] Probate of Mr Johns’ last will dated 15 May 2002 was granted on 1 November 2017 in favour of Mr Lord, a solicitor, and Mr Holloway, an accountant, as executors and trustees named in the last will. Under the will, Mrs Johns received gifts of chattels. They were of modest value. The will also provided for a bequest of $20,000 to Stephen; $30,000 to one of his sisters; $40,000 to the other sister; an annuity of $4,000 to Mr Johns’ brother; and residuary estate to the trustees of the Lewis Richard Trust (the Trust). That trust was settled by Mr Johns by deed on 14 December 1995 for the benefit of himself, Mrs Johns, her two children and their children.

1 Johns v Lord [2020] NZFC 8974.

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 Johns v Lord

Details

AGLC: Johns v Lord [2021] NZHC 281
Case: [2021] NZHC 281
Decision Date: 25 February 2021

CaseChat Overview and Summary

The appeal in Johns v Lord was heard in the High Court of New Zealand, Auckland Registry, and involved a dispute over the estate of the late Mr. Lewis Johns. The appellant, Stephen Johns, sought further provision from his late father’s estate under the Family Protection Act 1955, claiming that his father had failed to make adequate provision for his maintenance and support. The first respondents, Christopher Lord and Colin Holloway, as executors of Mr. Johns’ estate, and the second respondent, Gail Johns, Mr. Johns’ widow, opposed the appeal. The central legal issue was whether the Family Court was correct in dismissing Stephen’s application for further provision from the estate, given the lack of assets available.

The court found that the disposition of assets to third parties during Mr. Johns’ lifetime and the benefit of jointly owned assets under the rules of survivorship could not be determined in a proceeding brought under the Family Protection Act. The court held that there were no assets in the estate to satisfy Stephen’s claim, and thus the Judge’s decision to dismiss the substantive application was inevitable. The court also noted that the Family Court has the power to review dealings under the Protection of Personal and Property Rights Act 1988 regarding the holders of powers of attorney, but no such application had been filed. The appeal was dismissed, and costs were reserved pending further submissions from the parties.

Orders