Lane v Goldson - [2023] NZHC 2620

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-603264

[2023] NZHC 2620

IN THE ESTATE OF
DONALD ALGERNON GIFFORD

(Deceased)

BETWEEN

REBECCA ELIZABETH LANE
Applicant

AND

ANNE VERONICA GOLDSON and BENJAMIN JAMES GOLDSON as

executors of the estate of Donald Algernon Gifford Respondents

Hearing: 2 August 2023

Counsel:

D Montepara for Applicant ML Barnes for Respondents

Judgment:

20 September 2023

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 20 September 2023 at 12 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Kemp Barristers & Solicitors, Kumeu. Glaister Ennor, Auckland.

LANE v GOLDSON [2023] NZHC 2620 [20 September 2023]

Introduction

[1] This brief judgment addresses Rebecca Lane’s application for an order under s 19 of the Administration Act 1969 calling on the respondents to show cause why probate of a will should not be granted to the Public Trust.1

Background

[2] Donald Gifford died 26 February 2022, after battling Alzheimer’s disease. Mr Gifford left a will dated 3 December 2015. By that will, Mr Gifford appointed two executors: Anne Goldson and Benjamin Goldson. Benjamin Goldson is Mr Gifford’s adult son. Anne Goldson is Mr Gifford’s partner of almost 30 years.

[3] Mr Gifford ceased all work in 2018 because of his deteriorating health. Thereafter, Mr Gifford sold some of his assets to pay for his living expenses and care. In late 2020, Mr Gifford moved into the dementia unit of a retirement home, then into another dementia unit at a different retirement home. Ms Goldson says she paid for much of Mr Gifford’s care at a cost of between $5,555.60 and $7,243.20 each month.

[4] Mr Gifford’s remaining asset of significance appears to have been his home in St Marys Bay, Auckland.2 The home was in a trust called the Aldebaran Trust. However, Mr Gifford decided to dissolve the trust and place the home in Ms Goldson’s name:

(a)To ensure there was equity available to pay for his care.

(b)To provide for Ms Goldson when he died.

(c)Because in or about 2018, Ms Goldson had paid for approximately
$500,000 of remedial works on the home.

[5]The home is worth approximately $3,850,000 – $4,530,000.

1 Ms Lane also sought an order concerning production of the will, but I apprehend this aspect is no longer contentious because Ms Lane has been given a certified copy of the will and may inspect the original at Glaister Ennor.
2 Mr Gifford and Ms Goldson lived in separate homes.

[6] On 29 September 2020, the trust transferred the home to Ms Goldson. The home is not, therefore, part of Mr Gifford’s estate.

[7]The evidence suggests the estate is insolvent.

[8] Rebecca Lane may well be Mr Gifford’s daughter: Mr Gifford had a relationship with Ms Lane’s mother; appears to have regarded Ms Lane as his daughter; and referred to her as his daughter in his will. Moreover, Ms Lane regarded Mr Gifford as her father and says…

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 Lane v Goldson

Details

AGLC: Lane v Goldson [2023] NZHC 2620
Case: [2023] NZHC 2620
Decision Date: 20 September 2023

CaseChat Overview and Summary

Rebecca Lane sought an order under s 19 of the Administration Act 1969 calling on Anne and Benjamin Goldson to show cause why probate of the will of Donald Algernon Gifford should not be granted to the Public Trust. Mr Gifford died on 26 February 2022. He had appointed the Goldsons as executors of his will. Ms Lane claims she is Mr Gifford’s daughter, and that he failed to provide for her adequately in his will. She seeks to have the Public Trust appointed to administer Mr Gifford’s estate so that it may investigate, and then prosecute, a claim against Ms Goldson under the Property (Relationships) Act 1976, so that, in turn, Ms Lane may bring a claim against Mr Gifford’s estate under the Family Protection Act 1955 or rely upon s 77 of the Administration Act in relation to the estate. Downs J dismissed the application on three grounds: first, it is not clear that s 19 is an appropriate vehicle for what Ms Lane seeks to achieve; second, it is not clear that the Public Trust, if appointed, would be given leave to bring a claim under s 25(1)(a) of the Property (Relationships) Act; and third, Ms Lane has not offered any evidence about how the proposed activities by, and on behalf of the estate, would be funded. The evidence suggests the estate is insolvent, and it is unclear how the Public Trust would be funded, if appointed.

The application was dismissed, and Ms Lane must pay Ms Goldson and Mr Goldson, as executors, 2B scale costs.

Orders