Le Couteur v Norris - [2018] NZCA 572

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA331/2018
[2018] NZCA 572

BETWEEN	JULIET LE COUTEUR Appellant
AND	RICHARD NORMAN TUDWAY NORRIS AND RICHARD GEORGE WILSON AS EXECUTORS AND TRUSTEES OF THE ESTATE OF SIDNEY HOWARD LE COUTEUR Respondents
AND	HOWARD FRANCIS JOHN LE COUTEUR AND STEPHEN LE COUTEUR Interested Parties

Hearing:	9 October 2018
Court:	Cooper, Venning and Collins JJ
Counsel:	A J Steele and K R Narayanan for Appellant G A Cooper and A L Worrill for Interested Parties No appearance for Respondents
Judgment:	11 December 2018 at 2.30 pm

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe judgment of the High Court is set aside.
C The appellant is awarded $590,000 from her mother’s estate under s 3 of the Law Reform (Testamentary Promises) Act 1949.
DThe interested parties must pay the appellant costs for a standard appeal on a band A basis and usual disbursements.
ECosts in the High Court are to be determined in that Court.

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REASONS OF THE COURT

(Given by Venning J)

Introduction

In a judgment delivered on 23 May 2018 Powell J declined Ms Juliet Le Couteur’s claim for relief under the Law Reform (Testamentary Promises) Act 1949 (the Act) against the estate of her late mother Sidney Le Couteur.[1] Juliet appeals against that decision.

Background

[1]Le Couteur v Norris [2018] NZHC 1074.

Sidney Le Couteur and her husband Philip had three children, Juliet and her two brothers, Howard and Stephen. Sidney lived in Auckland, mainly on the North Shore. Howard spent his adult life in Christchurch. Stephen is now living in Auckland but between 2005 and 2014 lived in England.
Sidney’s last will was made on 27 March 1991. In it she left everything to her husband Philip if he survived her but in the event he did not she appointed the respondents as executors and trustees and gave Juliet her home at 50 Pupuke Road, Takapuna, together with chattels (excluding any motor car). The rest of the estate was to be divided equally between Howard, Stephen and Juliet. Philip died in 1995 when Sidney was 72 years old. As his will was in similar terms to Sidney’s will the property at 50 Pupuke Road, Takapuna was transferred into Sidney’s sole name by survivorship.
Following her father’s death, Juliet assumed a more active role in the care of her mother. Before his death Philip had asked Juliet and her husband, Tony Garnier, to look after Sidney. In June 1997 Juliet and Tony, together with Sidney, purchased a property at 12A Manawa Road, Remuera as to a half-share each with the intention Sidney would live with Juliet and her family. In October 1997 Sidney sold 50 Pupuke Road and moved into 12A Manawa Road.
Subsequently, in June 1999 Sidney decided to move back to the North Shore and purchased a property at 10G Brett Avenue, Takapuna. Sidney moved to Brett Avenue in April 2000. The property at Manawa Road, Remuera was…

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 Le Couteur v Norris

Details

AGLC: Le Couteur v Norris [2018] NZCA 572
Case: [2018] NZCA 572
Decision Date: 11 December 2018 at 2.30 pm

CaseChat Overview and Summary

The Court of Appeal allowed an appeal by Juliet Le Couteur against a decision of Powell J declining her claim for relief under the Law Reform (Testamentary Promises) Act 1949 against the estate of her late mother Sidney Le Couteur. The Court found that Sidney had promised to leave her home to Juliet and that Juliet had provided services beyond that which may normally be expected of a daughter. The Court found there was a sufficient nexus between the relevant promises and the services Juliet provided Sidney. The Court found that Sidney had testamentary capacity at all relevant times. The Court awarded Juliet $590,000 from her mother's estate. The interested parties were ordered to pay Juliet costs for a standard appeal on a band A basis and usual disbursements. Costs in the High Court were to be determined in that Court.

Orders