Jones v Bassett
[2024] NZHC 1655
•21 June 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-707
[2024] NZHC 1655
UNDER Part 18 of the High Court Rules 2016 IN THE MATTER
of the estate of MARGARET WILMA JONES
BETWEEN
NICOLA ANN JONES
Plaintiff
AND
SAMUEL MICHAEL WILLIAM BASSETT and MASON GRANT WEYMOUTH
LOCKHART as administrators in the estate of MARGARET WILMA JONES
First Defendants
MICHAEL ALEXANDER JONES
Second DefendantKATHERINE MARY JONES
Third Defendant
Hearing: 22 February 2024 Counsel:
L W Dixon for Plaintiff
Judgment:
21 June 2024
JUDGMENT OF BREWER J
This judgment was delivered by me on 21 June 2024 at 2.30 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Patterson Hopkins (Auckland) for Plaintiff
JONES v BASSETT & LOCKHART [2024] NZHC 1655 [21 June 2024]
Introduction
[1] Mrs Margaret Wilma Jones (the deceased) died intestate on 20 September 2018. Her husband (Angus) died 10 months before her, also intestate.
The deceased is survived by her three children:
(a)Nicola Ann Jones, the plaintiff (Nicky);
(b)Michael Alexander Jones, the second defendant (Michael);
(c)Katherine Mary Jones, the third defendant (Katy).
[3] Pursuant to s 77 of the Administration Act 1969, the deceased’s estate is held by the administrators (the first defendants) on trust for Nicky, Michael and Katy equally.
[4] The principal asset of the deceased’s estate is a residential property in Mellons Bay, Auckland (the house).
[5] Nicky claims she is entitled to a one-half share in the house. She sues the defendants with the purpose of obtaining an order from the Court giving effect to her claim.
[6]In her statement of claim, Nicky advances three causes of action:
(a)For relief pursuant to the Family Protection Act 1955 (FPA);
(b)For a declaration and order arising from an equitable estoppel; and
(c)A declaration and order pursuant to the Law Reform (Testamentary Promises) Act 1949 (TPA).
[7] The defendants have not taken any steps. Accordingly, a formal proof hearing took place on 22 February 2024. The onus is on Nicky, for each cause of action relied on, to provide evidence establishing her case.1
[8] As to evidence, I have Nicky’s affidavits sworn on 8 November 2022 and 19 April 2023; and Katy’s affidavit sworn on 24 November 2022.
[9]This Judgment determines Nicky’s claim.
Background
[10]I take the background from Nicky’s 2022 affidavit:
8.I was born in 1970. I went travelling at age 17 and spent much of the 1990s abroad. I enjoyed an exciting and fulfilling life in a range of countries. When I was 17 and 18, I lived in Brazil and travelled around South America. At aged 23-24, I lived in Norway. Between the ages of 25 and 31, I was lived in Japan and travelled around Europe, Asia, South Africa, Jordan and Israel. In around 1995, I settled in Hokkaido, Japan. I formed a life there. I had a wide circle of friends and an active social life. In 2001, I was enrolled in a Master’s degree in anthropology at Hokkaido University, one of Japan’s top universities.
9.In December 2001, I received news that Mum was unwell with circulatory problems and would likely need an operation on her femoral artery. Within a few days, I had flown back to New Zealand to support Mum and Dad through this time. At that stage, I was planning on returning to Japan to resume my life there after Mum had recovered. I sublet out my flat on a short-term basis to help cover some of the costs in the meantime.
10.As it happened, Mum did not need major surgery and instead had a stent inserted into her leg. However, it was clear to me that [her] health was in decline. She told me that she would often have “blips” and briefly “zone out”. Her doctors had told us that it was very important to do aerobic exercise but she was reluctant to that alone in case she had an event and lost consciousness. I would go on long daily walks with her to help her with this. I would accompany her on visits to her sister and other friends and relatives who lived a bit further away.
11.In around 2002, Mum announced to me that she planned to leave her share in the [house] to Katy and me in equal shares but the balance of her estate would be divided equally between the three of us children. Her stated reason for not leaving Mike a share of the [house] was that he had “had enough”. This was because Mum and Dad had invested a lot of time and money into Mike’s various businesses, as well as loaned him (or his companies) significant amounts of money.
1 High Court Rules 2016, r 15.9.
12.Mum’s decision to leave the [house] to Katy and me equally was a bit of a recurring topic of conversation. She repeated it to me on a number of occasions and told various family members as well. I specifically recall her telling Dad's sister Patricia Songhurst as well as her own sister Patricia Renall (who has since died). Because of these and other comments, I came to believe that Mum would make a will leaving me a one-half share [of] the [house].
13.For his part, Dad agreed with Mum that Katy and I would receive ½ of the [house]. It was always understood, between my parents and me at least, that I would buy Katy out of her share of the [house] and would remain in the [house] after their deaths. Dad used to me show [sic] little quirks the [house] had, like the fact he had installed a second pipe for the water mains so it would not be necessary to dig up the driveway if the first pipe every broke.
14.After arriving back in New Zealand, I initially supported myself by teaching English as a second language. In about April 2004, I took on a sales role at Digital Mobile. I very quickly became their leading salesperson. Initially I was employed by Digital Mobile’s head office but in around September 2005, I went into business with Katy as a franchisee of Digital Mobile. I remained in sales and I would regularly win prizes, which could be as much as $5,000 at a time, for being the best salesperson. Because of the time that I was devoting to Mum and Dad, I was not able to make use of these prizes and usually ended up reinvesting them in some way into the business.
15.In August 2004, Mum suffered a major stroke. She was only 67. The stroke left her physically impaired and aphasic. She was only able to communicate in a basic way. She initially retained a good level of understanding but her cognition did decline in the years after her stroke. She began to have behavioural issues caused by her impaired cognition, which was stressful for both Dad and me. Conversely, she recovered much of her physical strength. She would often walk to Howick village and spend the walking up and down the main street. She would often walk many kilometres a day. She could become physically aggressive. She would lash out at Dad and me. Her impaired cognition combined with her physical capability meant it was difficult to manage Mum’s needs. Mum’s condition could get worse if she had a urinary tract infection or something similar.
16.Dad and I tried to divide Mum’s care between us. I would look after her in the morning and evenings and during weekends. Dad would look after her while I was at work. I would also take time off work to take her to her various medical and other appointments. I took on more and more responsibility as Dad’s own health began to decline.
17.Dad’s health began to go downhill from around 2005. He had always been extremely avoidant of doctors and other medical professionals and did not seek or receive appropriate care. Things came to a head in July 2010. I arrived home one night and found Dad disoriented and confused. After dealing with Mum for the night, I put him to bed intending to take him to get checked out the following morning. He wet the bed overnight and was unable to stand up in the morning. An ambulance was called and he was admitted to hospital. He was
severely underweight, weighing less than 50kgs despite being over six-feet tall. He had a severe undiagnosed and untreated urinary tract infection and other problems. As a result, he had been unable to urinate properly – instead the urine would come out through small holes called fistulas. He was also incontinent as to faeces.
18.Dad was initially admitted to Middlemore hospital before being discharged home on 26 July 2010. He was then admitted to Auckland Hospital, which had a specialised urology service, in August 2010. The discharge summary is included in the medical notes annexed and referred to in paragraph 26 below.
19.Dad was assessed as requiring long term hospital level care but he was adamant he wanted to return home to the [house] and I wanted to support him in that. After he came home, I was his primary caregiver. Dad was supposed to receive help from DHB careworkers but they were very unreliable. Most of the burden fell on me, despite the fact that I was continuing to work day to day.
20.While Dad was in hospital, I was still looking after Mum as best I could. I tried placing Mum into Howick Baptist day care but they would not take her back. I arranged for her to go into Howick Manor temporarily until I could work out what to do and where things were going. She declined rapidly while there and was briefly admitted to Middlemore’s psychiatric ward. I then placed her at Awanui Resthome, a secure dementia unit with a large garden for Mum to walk in. Mum stayed at Awanui for a number of years until her mobility declined and she had to move into hospital level care at Caughey Preston. I was led to believe that Mum was not eligible for a residential care subsidy and was not given the forms to apply for a subsidy. I decided to pay for Mum’s care costs at both Awanui and Caughey Preston out of my own money. It seemed the only other way to pay for Mum’s care would be to raise a mortgage on the [house] or sell it. Both Dad and I were strongly opposed to both options. All told, I spent around $70,000 on Mum’s care before running out of money in 2013. At that stage, Caughey Preston kicked Mum out and Katy arranged for her to be placed at Selwyn Oaks. Mum began receiving a subsidy at that stage. I was never reimbursed for the money I had spent on Mum’s care or “peripherals” like new hair cuts, shoes, clothes etc.
21.In addition to providing Mum and Dad with care and support, I continued to work in the Digital Mobile franchise business with Katy. Ultimately, it was not a success. The sheer amount of time and effort had to spend on my parents’ care, let alone the stress, led to a complete breakdown of Katy’s and my personal and working relationship. I stopped working in the business in 2013. At that stage, I decided to devote myself fully to Dad’s care.
22.After the crisis in 2010, Dad’s weight increased and he was able to remain living at home at the [house]. He continued to have ongoing health problems which could sometimes worsen. He suffered from chronic kidney failure and recurrent urinary tract infections, accompanied by delirium and confusion, were common. There were regular episodes of double incontinence. I had to help Dad with his
daily cares, including showering and toileting. I had to change his bedding, sometimes more than once a night I became far more familiar with Dad’s private bodily functions than I ever expected or wanted.
23.Dad was admitted to hospital on a number of occasions between 2010 and his death in 2017. As I have already set out, he was extremely fearful of hospitals and I would usually have to spend the night on the floor or in a chair next to his bed to reassure and comfort him.
24.In April 2017, Dad fell down some stairs, aggravating a longstanding back problem and fracturing two ribs. He was in bed nearly all the time after that fall. He suffered from recurrent urinary tract infections, bouts of pneumonia, kidney problems and extreme back pain, among other things. He was also suffering from long term chronic obstructive pulmonary disorder. I had to provide him with 24 hour nursing care, including turning him every two hours without fail to prevent pressure sores. I had to help with toileting and washing, including changing adult diapers. I prepared his meals and even had to feed him because he was so immobile. He had a catheter which frequently became blocked. That would result in it leaking and wetting the bed. Dad was periodically admitted to hospital throughout 2017 but he was still adamant that he wanted to return home. In around October 2017, he had a very severe urinary tract infection which affected him mentally. He scored 15/30 on a mini-mental state examination. His cognition never really recovered after that. He died in November 2016.
[11] I will consider the three causes of action against this background, drawing on other material in Nicky and Katy’s affidavits when relevant.
Equitable estoppel
[12] I commence with the equitable estoppel cause of action because Mr Dixon, counsel for Nicky, advises that this is the principal cause of action relied upon.
[13] In the statement of claim it is pleaded that on numerous occasions from 2001 until her stroke in August 2004, the deceased represented to Nicky that she would leave the house to Nicky and Katy in equal shares and that the residue of her estate would be divided equally between Nicky, Katy and Michael.
[14]It is pleaded:
38.In reasonable reliance on the representations Margaret made to her that she would receive not less than one-half of the [house] and a further one-third share of the residue of her estate:
(a)Nicky forwent educational opportunities, including the opportunity to complete her Master’s degree in Hokkaido, Japan;
(b)Nicky depleted her own savings to provide for Margaret’s care and to prevent the sale of the [house];
(c)Nicky forewent the opportunity to buy into the Auckland property market and was therefore unable to participate in the substantial capital gains enjoyed by the market since 2002;
(d)Nicky provided her parents with a level of care such that:
(i)she was unable to pursue romantic relationships or to form a family of her own;
(ii)her previously active social life has dwindled away;
(e)In addition to the care she provided to Margaret, Nicky provided fulltime care to Angus after he was discharged from hospital in 2010 until she moved to the bach Awhitu Peninsula in around late-2013 until and again from the time she returned from the Awhitu Peninsula in early 2016 until his death in November 2017;
(f)Nicky suffers from caregiver burnout, anxiety and depression as a result of the level of care her parents required.
[15] In her 2022 affidavit, Nicky deposes (sufficiently) to the pleadings quoted above. Katy, in her affidavit, says:
11.I will say that Mum did speak to me on several occasions of her intent to leave the [house] to me and Nicky in ½ equal shares and a third of the residuary estate to each of us. She did tell me on a number of occasions that she believed that Mike had received more than his third share of the [house] as my parents had invested a significant amount of money, resources and time into the family businesses they entered into with Mike for which they were never provided any equitable benefit.
Discussion
[16] The basis of the modern doctrine of equitable estoppel is that a party will not be permitted to deny an assumption, belief or expectation that it has allowed another party to rely on where such a denial would be “unconscionable”.2
2 Andrew Butler (ed) Equity and Trusts in New Zealand (2nd ed, Thomson Reuters, Wellington, 2009), at 602; National Westminster Finance NZ Ltd v National Bank of NZ Ltd [1996] 1 NZLR 548 (CA) at 549; Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 (HCA) at 404.
[17] The requirements of equitable estoppel are set out by the Court of Appeal in Wilson Parking New Zealand Ltd v Fanshawe 136 Ltd.3 The following four elements are necessary to establish an equitable estoppel:4
(a)a belief or expectation by the claimant created or encouraged by words or conduct by the respondent (in this case the deceased);
(b)to the extent an express representation is relied upon, it is clearly and unequivocally expressed;
(c)the claimant reasonably relied to his or her detriment on the representation; and
(d)it would be unconscionable for the respondent (in this case, the deceased) to depart from the belief or expectation.
[18] In this case I am satisfied on the evidence:
(a)Nicky had a belief or expectation created by the words of the deceased that the deceased would, in her will, leave Nicky a one-half share in the house; and
(b)Nicky relied upon the deceased’s express and repeated representation which was clearly and unequivocally expressed; and
(c)Nicky reasonably relied to her detriment on the representation; and
(d)it was unconscionable for the deceased to depart from Nicky’s belief or expectation.
[19] The affidavits of Nicky and Katy provide the evidence which cause me to be satisfied. I will not repeat it.
[20] Accordingly, I find for Nicky on the second cause of action. I make a declaration that the first defendants hold one-half of the house on trust for Nicky. I direct that the first defendants will account to Nicky for her one-half share as if the deceased had left a valid will in which she devised to Nicky a one-half share in the
3 Wilson Parking New Zealand Ltd v Fanshawe 136 Ltd [2014] NZCA 407, [2014] 3 NZLR 567.
4 See, Wilson, above, at [44]. See also Hamilton v Kirwan [2020] NZHC 2149 at [29].
house as a tenant in common with the owner or owners of the remaining one-half share.
[21] For the avoidance of doubt, the balance of the deceased’s estate (i.e. the estate less Nicky’s one-half share in the house) remains subject to the Administration Act 1969.
Family Protection Act 1955
[22] The statement of claim pleads the support Nicky gave to her parents as set out in her 2022 affidavit. It is then pleaded:
31.As a result of the care and support Nicky provided to her parents until their respective deaths:
(a)she spent her lifesavings on her parents’ care costs;
(b)she was unable to work between late 2012 and November 2017, and as a consequence was unable to buy into the Auckland property market and was therefore unable to participate in the substantial capital gains enjoyed by the market since 2002.
32.Nicky is in parlous financial circumstances in that:
(a)She has no substantial assets of her own;
(b)She is currently earning approximately $90,000 as a commercial driver but was not in receipt of an income between 2012 and November 2017.
33.In the circumstances, a one-third share of Margaret’s net estate does not adequately provide for Nicky’s proper maintenance and support.
[23] Section 4(1) of the FPA provides:
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.
(Emphasis added)
[24] The FPA establishes the Court’s discretionary power to intervene where the deceased’s will, or the rules of intestacy, provide inadequate provision for the “proper maintenance and support” of the claimant.5
[25] The section is only used to rewrite a will, or adjust the provision of an intestacy, where the will or intestacy rules have failed to adequately provide for a claimant. Section 4 of the FPA does not provide a basis to change the distribution because the will, or the rules of intestacy, do not give effect to the deceased’s testamentary wishes.6
[26] In Little v Angus, the Court of Appeal considered a claim by the daughter of the testatrix. Cooke P described the inquiry under the FPA as being into:7
… whether there has been a breach of moral duty judged by the standards of a wise and just testator or testatrix; and if so, what is appropriate to remedy that breach. Only to that extent is the will to be disturbed… Whether there has been a breach of moral duty is customarily tested as at the date of the testator’s death.
[27] The principles governing the application of s 4 have largely developed in the context of legal challenges to distributions under wills but equally apply to situations of intestacy. Katz J, in Bean v Bean, considered the modern approach to the rule.8
[20] A number of cases, including the decisions of the Court of Appeal in Williams v Aucutt;9 Auckland City Mission v Brown;10 and Henry v Henry11 have informed the modern approach to claims under the Family Protection Act. The key principles include that:
(a)“Proper maintenance and support” requires a broad approach that includes the need to recognise the child as a valued member of the family and other social and ethical factors. “Support” is a wider term than “maintenance” and is used in its wider dictionary sense of “sustaining, providing comfort”. A child's path through life is supported not simply by financial provision to meet economic needs and contingencies but also by recognition of belonging to the family and of having been an important part of the overall life of the deceased.12
5 Nicola Peart (ed) Family Law — Family Property (online ed, Thomson Reuters) at [FP 4.01];
Bean v Bean [2019] NZHC 20 at [18].
6 Bean v Bean, above n 5, at [30].
7 Little v Angus [1981] 1 NZLR 126 (CA) at 127.
8 Bean v Bean, above n 5. See also Brosnahan v Meo [2021] NZHC 79.
9 Williams v Aucutt [2000] 2 NZLR 479 (CA).
10 Auckland City Mission v Brown [2002] NZCA 33, [2002] 2 NZLR 650.
11 Henry v Henry [2007] NZCA 42, [2007] NZFLR 640.
12 Williams v Aucutt, above n 9, at [52].
(b)“Proper” denotes something different from “adequate” and the amount of an award is accordingly not to be measured solely by the need of maintenance which would be so if the court were concerned merely with adequacy.13
(c)Assessing what provision will constitute proper support is a matter of judgment in all the circumstances of the particular case. Where there is no economic need it may be met by a legacy of a moderate amount. On the other hand, where the estate comprises the accumulation of the family assets and is more than sufficient to meet other needs, provision so small as to leave a justifiable sense of exclusion from participation in the family estate might not amount to proper support for a family member.14
(d)In cases of financial need, the amount necessary to remedy the failure to make adequate provision in the will, will be able to be determined with greater precision than in cases where the need is more of a moral kind.15
(e)The size of the estate and any other moral claims on the deceased’s bounty are relevant factors.16
(f)In assessing whether the deceased has made appropriate provision for the claimant’s proper maintenance and support, and what would be required to remedy a failure, the court should do no more than the minimum to redress a testator’s breach of moral duty. Beyond that point the testator’s wishes should prevail, even if the individual Judge might, sitting in the testator’s armchair, have seen the matter differently.17 Testators are at liberty to do what they like with their assets and to treat their children differently or to benefit others once they have made such provisions as are necessary to discharge their moral duty to those entitled to bring claims under the Family Protection Act.18
(g)The Court’s power does not extend to rewriting a will because of a perception that it is unfair. Nor is disparity in the treatment of beneficiaries sufficient, in itself, to establish a claim.19
(h)Although awards should not be unduly generous, nor should they be unduly niggardly particularly where the estate is large
13 Williams v Aucutt, above n 9, at [38], as cited in Fisher v Kirby [2012] NZCA 310 at [111]; and
Bosch v Perpetual Trustees Company Ltd [1938] AC 463 (PC) at 479.
14 Williams v Aucutt, above n 9, at [52].
15 Henry v Henry, above n 11, at [58].
16 Little v Angus, above n 7, at 127.
17 Williams v Aucutt, above n 9, at [70]; see also Auckland City Mission v Brown, above n 10, at [36];
Henry v Henry, above n 11, at [55] and [58].
18 Williams v Aucutt, above n 9, at [70].
19 Re Leonard [1985] 2 NZLR 88 (CA) at 92; Williams v Aucutt, above n 9; Henry v Henry, above n 11, at [55].
and it is not necessary to endeavour to satisfy a number of deserving recipients from an inadequate estate.20
[28] Here, the house is the principal asset of the deceased’s estate. Nicky, in her 2023 affidavit, deposes it has a CV of $1,660,000. She deposes also that the deceased had a collection of figurines with an appraised value of about $40,000.
[29]The house is mortgaged. In her 2022 affidavit Nicky deposes:21
33.I acknowledge that the administrators have had to raise a mortgage of
$168,000 secured against the [house]. The administrators have said that the mortgage will fall due in March next year and I understand that it will need to be repaid or refinanced at that stage.
34.I am currently working as a truck driver and am earning about $90,000 a year-the precise amount depends on the number of shifts I pick up in any given week. I am prepared to enter into a binding agreement to service the mortgage (including principal payments) and to pay all other outgoings on the [house] until my substantive claims are resolved if that is necessary to prevent a sale of the [house] at this stage. I understand that if I am unable to keep those obligations up to date that it will be necessary for the [house] to be sold.
[30] I have no evidence as to Katy or Michael’s financial situations.
[31] Nicky’s evidence does not provide detail of her financial situation. It does not satisfy me that she is “in parlous financial circumstances”.
[32] The evidence does not inform me as to the family’s dynamics. I do not know what roles Katy and Michael played in the deceased’s life.
[33] I am not satisfied that the deceased, as a wise and just testatrix, should have determined that Nicky should have a greater share of her estate than Katy and Michael. I am not satisfied that there has been a breach of moral duty such that the outcome of intestacy should be adjusted.
[34]This cause of action does not succeed.
20 Fisher v Kirby, above n 13, at [120].
21 The 2022 affidavit was filed in a proceeding brought by the first defendants for direction as to whether to sell the house or retain it pending resolution of Nicky’s claims: Bassett v Jones [2023] NZHC 768.
Testamentary promise
[35] The third cause of action pleaded is that the representation relied on to found an equitable estoppel, coupled with Nicky’s care of the deceased, entitles her to relief under the TPA.
[36]Section 3(1) of the TPA provides:
Where in the administration of the estate of any deceased person a claim is made against the estate founded upon the rendering of services to or the performance of work for the deceased in his lifetime, and the claimant proves an express or implied promise by the deceased to reward him for the services or work by making some testamentary provision for the claimant, whether or not the provision was to be of a specified amount or was to relate to specified real or personal property, then, subject to the provisions of this Act, the claim shall, to the extent to which the deceased has failed to make that testamentary provision or otherwise remunerate the claimant (whether or not a claim for such remuneration could have been enforced in the lifetime of the deceased), be enforceable against the personal representatives of the deceased in the same manner and to the same extent as if the promise of the deceased were a promise for payment by the deceased in his lifetime of such amount as may be reasonable, having regard to 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, the value of the services or work, the value of the testamentary provision promised, the amount of the estate, and the nature and amounts of the claims of other persons in respect of the estate, whether as creditors, beneficiaries, wife, husband, civil union partner, children, next-of-kin, or otherwise.
[37] The TPA may apply in the context of an intestacy.22 A successful claim under s 3 requires the claimant to establish the following elements:
(a)that the claimant rendered services to, or performed work for, the deceased during his or her lifetime; and
(b)that the deceased made an express or implied promise to reward him or her for the services or work undertaken by making some testamentary provision for the claimant.
[38]Further principles that inform the application of the TPA include:23
22 Ryan v Public Trustee [2000] 1 NZLR 700 (HC).
23 See generally, Bill Patterson Law of Family Protection and Testamentary Promises (5th ed, LexisNexis, Wellington, 2021) at 222–224.
(a) The value of the claim itself must not extend beyond the extent of the promise for which the deceased failed to make testamentary provision or otherwise remunerate the claimant.24
(b)A “promise” includes a statement or representation of fact or intention.25
(c)The promise itself need not relate to specific real or personal property or provide for a specific amount.26
(d)It is immaterial whether the work is completed before or after the promise was made.
(e)The promisor must have capacity to enter into a contract at the time the promise was made.27
(f)Under s 3(1) of the TPA, a court must take into consideration a claim under the FPA.28
[39] The Court of Appeal in Powell v Public Trustee, considered that the section required the Court in making its assessment to take into account all relevant circumstances, and, in particular:29
(1)The circumstances in which the promise was made and the services were rendered or the work was performed.
(2)The value of the services or work.
(3)The value of the testamentary provision promised.
(4)The amount of the estate.
(5)The nature and amounts of other claims on the estate.
24 Law Reform (Testamentary Promises) Act 1949, s 3(1).
25 Patterson, above n 23, at 222; Law Reform (Testamentary Promises) Act 1949, s 2.
26 Law Reform (Testamentary Promises) Act 1949, s 3(1).
27 Patterson, above n 23, at 223.
28 Breuer v Wright [1982] 2 NZLR 77 (CA) at 86.
29 Powell v Public Trustee [2003] 1 NZLR 381(CA) at [10].
[40] The evidence satisfies me that the deceased promised on several occasions to leave Nicky a one-half share in the house.
[41] I am satisfied that Nicky, over a period of years, performed considerable services for her mother.
[42] The circumstances in which the promise was made and repeated were that the deceased’s health had deteriorated and Nicky had returned to New Zealand from Japan to care for the deceased. She lived in the house with her parents (and still lives in the house).
[43] However, there must be some kind of causal connection between the services rendered and the promises made.30 Here, there is no evidence that the deceased made the promise because of Nicky’s services, past or anticipated. On Nicky’s account, the deceased’s motivation was that Michael had already had “enough” and so both Nicky and Katy would have half shares in the house.
[44] On the other hand, Nicky’s evidence is that her continuing care for her mother (including depleting her savings to pay for rest home care) and for her father was motivated by her reliance on the promise.
[45] I am satisfied that Nicky’s services to her mother went well beyond what might be expected of a dutiful child.31
[46] However, because of the lack of evidence of a causal nexus between the making of the promise and Nicky’s services, past or anticipated, this cause of action does not succeed.
Outcome
[47] I have found for Nicky on the equitable estoppel cause of action and have made orders at [20].
30 Blumenthal v Stewart [2017] NZCA 181, [2017] NZFLR 307 at [8].
31 Re Welch [1990] 3 NZLR 1 (PC).
[48] The other two causes of action do not succeed.
[49] Nicky is entitled to reasonable costs. I direct they be paid from the deceased’s estate. If they cannot be agreed then Nicky must file her memorandum no later than 2 August 2024. The defendants may file memoranda in reply no later than 30 August 2024.
Brewer J
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