Koroheke v Te Whau - [2020] NZHC 863

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV 2019-419-000317

[2020] NZHC 863

IN THE MATTER OF the Estate of MONA DISHER

BETWEEN

KATHLEEN KARARAINA KOROHEKE, MASSEY WILLIAM TE WHAU, PATSY TE WHAU, VIOLET LEVY and TE AROHA TE WHAU

Appellants

AND

NUNIA MICHELLE TE WHAU and KEVIN WERE

Respondents

Hearing: 11 March 2020

Appearances:

K A McDonald & G Watts for the Appellants R D Clark for the Respondents

Judgment:

30 April 2020

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 30 April 2020 at 3.00pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:
Gallie Miles, Te Awamutu Lewis Lawyers, Cambridge
R D Clark, Barrister, Hamilton

KOROHEKE v TE WHAU (the Estate of Mona Disher) [2020] NZHC 863 [30 April 2020]

TABLE OF CONTENTS

Introduction 1

Nature of appeal 6

Relevant background 11

The Te Whau family 12

Mona and Ngahina separate; Mona marries John Disher  16
Ngahina dies and leaves Otewa Road property to Massey  19
John Disher’s gifts and bequests to Mona’s family  21
Care for Mona after John Disher’s death  28
Mona’s death and her will  34
Mona’s memorandum of 10 July 2008  40

The Family Court decision 46

The appellants’ case on appeal 60

Case for the respondents 63

Relevant law 64

Discussion of appellants’ allegations 72

Did the Family Court wrongly take into account to the benefits received by Violet, Kathy and Massey under Mona’s husbands’ wills?  77
Did the Family Court make an error of law or fact about Mona’s ability to make claims under the Property (Relationships) Act?  85
Did the Family Court wrongly apply a subjective test in considering whether Mona was mistaken in her understanding of the benefits received from John Disher’s estate?            93
Did the Family Court wrongly take into account Mona’s claimed desire that the
Parihoro Road property not be sold?  96
Did the Family Court wrongly import a subjective view of Mona’s value system when assessing whether Mona had breached her moral duty to the appellants? 100
Did the Family Court fail to take into account, or give insufficient weight to, the benefits received by Nunia?  103
Did the Family Court fail to take into account the appellants’ need in the wider context of family recognition?  108
Did the Family Court fail to take into consideration the appellants’ financial
positions at the date of Mona’s death?  112
Did the Family Court fail to properly assess the scope of Mona’s moral duty and
fail to order provision adequate to ensure the discharge of that duty?                119
Has Mona discharged her moral duty to all of the appellants?  126
What is required to remedy the breach of Mona’s moral duty?  131
Result and orders  139
Costs  142

Introduction

[1] Kathleen Koroheke (Kathy), Violet Levy, Patricia Te Whau (Patsy), Te Aroha Te Whau (Aroha) and Massey Te Whau (the appellants), seek to set aside the decision of Judge S D Otene in…

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 Koroheke v Te Whau

Details

AGLC: Koroheke v Te Whau [2020] NZHC 863
Case: [2020] NZHC 863
Decision Date: 30 April 2020

CaseChat Overview and Summary

The appeal is against the Family Court's decision not to make provision for the appellants, Kathleen Koroheke, Violet Levy, Patricia Te Whau, Te Aroha Te Whau, and Massey Te Whau, under the Family Protection Act 1955 from the estate of their mother, Mona Disher. Mona made no provision in her will for any of the five appellants, on the basis that provision had already been made for them and her other children from the wills of her previous husbands and from other distributions. The appellants sought to set aside the Family Court's decision and sought provision for themselves and increased provision for their sisters, Patsy and Aroha. The Family Court held that Mona owed moral duties to all five appellants and, in the cases of Violet, Kathy and Massey, had satisfied those duties through benefits received from the estates of her two husbands. The Court held that Mona had breached her moral duties to Patsy and Aroha and ordered that provision be made for them based on the mid-point of the benefits received by Violet and Kathy, subject, in the case of Patsy, to adjustment for an amount paid to her by Mona’s second husband while he was alive. The appellants said the Family Court was wrong not to make any provision for Kathy, Violet and Massey and sought provision for them and increased provision for Patsy and Aroha. The High Court held that the Family Court made an error of law in assessing the scope of Mona's moral duty and failed to properly assess the appellants' financial needs when considering whether Mona had made proper provision for their maintenance and support. The Court concluded that Mona had not made adequate provision in her estate for the proper maintenance and support of any of the five appellants and ordered that provision be made from Mona's estate for the maintenance and support of each of the appellants. The Court also ordered that if it was necessary to sell the property at 20 Parihoro Road in order to satisfy the orders, the provisions to be made to the appellants shall be scaled according to the percentage that the value of the estate as realised represents to the sum of $790,000.

Orders