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…
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CaseChat Overview and Summary
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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