Kinney v Pardington - [2014] NZHC 289

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CIV-2013-443-058 [2014] NZHC 289

UNDER The Family Protection Act 1955

IN THE MATTER

of the Estate of KENNETH JOHN PARDINGTON

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: 24 February 2014

Appearances:

S Herbert for Plaintiff
K McKenzie for Defendant
S Hughes QC for Interested Parties

Judgment:

26 February 2014

JUDGMENT OF TOOGOOD J [Preliminary questions of law]

This judgment was delivered by me on 26 February 2014 at 3:00 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

KINNEY v PARDINGTON [2014] NZHC 289 [26 February 2014]

[1] The plaintiff, Erin Maureen Kinney, was born on 31 July 1990. She is the child of an extramarital relationship which her father, Kenneth John Pardington (“Mr Pardington”), had with her mother. Mr Pardington’s widow and their two adult sons, Mark and John, did not know of Erin’s existence until just over three months after Mr Pardington’s death on 1 September 2011.

[2] This proceeding concerns a claim made by Erin against Mr Pardington’s estate (“the Estate”) under the Family Protection Act 1955. The judgment deals with these preliminary questions of law posed by Associate Judge Abbott, at [11] of a Minute dated 8 October 2013:

Are there circumstances in which property that was previously jointly owned by the deceased and another or others, and has passed to the other joint owner or owners (and hence currently is not considered by the administrators to be part of the estate) can form part of the deceased’s estate? In particular, does s 4(3) or other provisions of the Property (Relationships) Act operate to retain jointly held assets in, or bring such assets back into, the estate?

[3] Counsel filed helpful written submissions and the matter was called for a hearing before me on the preliminary questions only. As will appear from the discussion below, counsel were agreed on the answers but they were also agreed that the answers did not materially advance resolution of the real issues between the parties because the case as pleaded addresses only some of them.

Answers

[4] I answer the questions as follows:

(a) Yes, there are circumstances in which property that was previously jointly owned by a deceased and another or others, and has passed to the other joint owner or owners (and hence currently is not considered by the administrators to be part of the Estate), can form part of the deceased’s estate.

(b)While s 4(3) of the Property (Relationships) Act 1976 (“the PRA”) does not operate to retain jointly held assets in, or bring such assets back into, an estate, other provisions of the PRA might operate in that way, depending on the circumstances.

Timetable orders

[5] Counsel agree that continued uncertainty about the contents of the Estate and Erin’s claims to share in it is not in the parties’ interests and that all issues…

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 [2014] NZHC 289
Case: [2014] NZHC 289
Decision Date: 26 February 2014

CaseChat Overview and Summary

The case of Kinney v Pardington involved a claim made by Erin Maureen Kinney against the estate of Kenneth John Pardington under the Family Protection Act 1955. Kinney was born from an extramarital relationship between her father, Mr Pardington, and her mother. The widow and sons of Mr Pardington were unaware of Erin's existence until after his death. The central legal questions concerned whether property previously jointly owned by the deceased and another, which had passed to the other joint owner, could form part of the deceased's estate, and whether certain provisions of the Property (Relationships) Act could retain or bring such assets back into the estate.

The court ruled that property that was previously jointly owned by a deceased and another, and had passed to the other joint owner, could indeed form part of the deceased's estate under certain circumstances. While section 4(3) of the Property (Relationships) Act 1976 did not operate to retain jointly held assets in, or bring such assets back into, the estate, other provisions of the Act might do so depending on the circumstances. The court also made several timetable and associated orders to facilitate the amendment of pleadings and responses, aiming to address all issues between the parties as soon as reasonably possible.

In conclusion, the court's decision clarified the potential inclusion of jointly held assets in a deceased's estate under specific conditions and provided a structured timeline for further proceedings, ensuring that all claims and issues could be appropriately addressed.

Orders