Legal Research
Cases
Kinney v Pardington

Kinney v Pardington

Case [2019] NZHC 317 1 March 2019

Maintenance and Support

Breach of Moral Duty

Family Protection Act 1955

Unconscionable Conduct

Recognition of Family Ties

Estrangement

Family Law

No judgment structure available for this case.

Type to search within this case.

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
Plaintiff

AND

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…

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 Kinney v Pardington

Details

AGLC: Kinney v Pardington [2019] NZHC 317
Case: [2019] NZHC 317
Decision Date: 1 March 2019

CaseChat Overview and Summary

Kinney v Pardington [2019] NZHC 317 is a case concerning the estate of Kenneth John Pardington (the deceased), who died on 1 September 2011. The deceased had a daughter, Erin Maureen Kinney (Erin), from a relationship outside of his marriage to Myrtle Myrtle Pardington, with whom he had two sons. Erin was unknown to Myrtle and her sons, and the deceased kept the existence of Erin and his relationship with Erin's mother secret. Erin, who has a difficult history of childhood abuse, neglect, and mental health issues, sought a remedy for the deceased's breach of his moral duty under the Family Protection Act 1955. The primary issue before the court was to determine what share of the estate should be awarded to Erin to remedy the breach of the deceased's moral duty.

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