IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA
NGĀMOTU ROHE
CIV-2013-443-058
[2019] NZHC 317
UNDER the Family Protection Act 1955 IN THE MATTER
of the estate of KENNETH JOHN PARDINGTON (deceased)
BETWEEN
ERIN MAUREEN KINNEY
PlaintiffAND
MARGARET MYRTLE PARDINGTON, DAVID JOHN PARDINGTON AND KENNETH MARK PARDINGTON
Defendants
AND
DAVID JOHN PARDINGTON AND KENNETH MARK PARDINGTON
Interested Parties
Hearing: 15 and 16 August 2016
5 February 2018 (Discovery and Consolidation hearing) 27 August 2018 (Valuation hearing)
4 December 2018 (Final submissions hearing)
Counsel:
C T Gudsell QC and D E G Nielsen for Plaintiff K A McKenzie for Defendants
S W Hughes QC for Interested Parties
Judgment:
1 March 2019
RESERVED JUDGMENT OF CULL J
TABLE OF CONTENTS
Factual background 5
History of the proceedings 8
The present proceedings 12
Issues 18
The Will 20
KINNEY v PARDINGTON [2019] NZHC 317 [1 March 2019]
The value of the estate 21
The parties’ position at final hearing 28
The evidence 32
The relevant legal principles 45
The parent-child relationship 54
Application 68
Result 82
[1] An ex-nuptial daughter claims against the estate of her father, to remedy his breach of moral duty to her by failing to make adequate provision for her during his lifetime and in his will. He kept her existence from his wife and their children.
[2] Kenneth Pardington (the deceased) died at New Plymouth on 1 September 2011. He was married and had two sons from his marriage. By his will, he left his wife with a life interest in his half-share of the family home and the income from his residuary estate during her lifetime. On Mrs Pardington’s death, his residuary estate is divided equally between the deceased’s children.
[3] Erin Kinney (Erin) is the daughter of the deceased, but was unknown to Mrs Pardington and the two sons. She claims under the Family Protection Act 1955 (the Act) for such provision as the Court thinks fit, out of the estate of the deceased.
[4] In this case, the sons accept that, as a child of the deceased, Erin is a beneficiary under the deceased’s will and has a valid claim. The sole question in these proceedings is the quantum of the sum required to remedy the breach of the deceased’s moral duty. This has involved an inquiry into the value of the estate, which was ultimately agreed by the parties.
Factual background
[5] The deceased was married to his wife, Myrtle Pardington, for nearly 50 years. They had two children of their marriage, Kenneth and David. Mrs Pardington and her two sons are trustees and executors of the deceased’s will (together, the defendants). The two sons are separately represented in these proceedings as “interested parties”, being beneficiaries of their father’s estate.
[6] The deceased, during his lifetime, visited Whitianga where he had a berth at the Whitianga marina for his boat, which he took regularly fishing. During his visits
to Whitianga, he formed a relationship with Erin’s…
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- AGLC
- Kinney v Pardington [2019] NZHC 317
- Case
- [2019] NZHC 317
- Decision Date
CaseChat Overview and Summary
The court considered the relevant legal principles, including the obligation of the deceased to make "adequate provision... for the proper maintenance and support" of persons entitled to claim under the Act, as well as the importance of the parent-child relationship. The court also assessed the nature of the relationship between the deceased and Erin, as well as the financial need and moral and ethical considerations involved in the case. The court found that the deceased's lack of acknowledgment towards Erin was a significant failure, particularly as the deceased knew of Erin's psychological stress and confirmed to Child, Youth and Family Services social workers that he was endeavouring to maintain contact with Erin. Even allowing that the deceased paid child support to Erin's mother once paternity was established, he made no gifts or distributions from the Family Trust to Erin in his lifetime and no testamentary provision in his will, keeping Erin's existence a secret from his family.
The court concluded that Erin's claim for maintenance and support in this case was both one of financial need, as well as a broader need for support, emotional, and filial. The court balanced the competing interests of the deceased's widow and the two sons of the marriage. The widow had a life tenancy in the deceased's share of the family home and received income from the residue of his estate for her lifetime. In contrast to Erin's circumstances and financial position, the two sons were not in financial need and had been acknowledged by the testator, both during his lifetime and in his will. The court found that the minimum necessary to make adequate provision for Erin to remedy the breach of the testator's moral duty was 70 per cent of the value of the deceased's estate. The plaintiff succeeded in her claim against the deceased's estate for breach of his moral duty and was awarded 70 per cent of the value of the estate, subject to a further determination on the deduction of costs from the agreed value of the estate of $615,000.00.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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