Lewis v Abernethy - [2014] NZHC 3081

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2013-470-528 [2014] NZHC 3081

BETWEEN
JASON JAMES LEWIS

First Plaintiff

AND

CHRISTINA ANNE MOLD Second Plaintiff

AND

COLIN ROSS ABERNETHY First Defendant

AND

DIANA FAY WISHLAW Second Defendant

Hearing: 20 May 2014

Appearances:

G C Jenkin for Plaintiffs
G Brittain for Second Defendant

Judgment:

4 December 2014

JUDGMENT OF KEANE J

This judgment was delivered by me on 4 December 2014 at 1pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Wife Family Lawyers, Perth, Australia, by their agent Bruce Dell Law, Panmure, Auckland for
Plaintiffs
Harris Tate, Tauranga for Second Defendant

LEWIS & ANOR v ABERNETHY & ANOR [2014] NZHC 3081 [4 December 2014]

[1] Zelma Lewis died at Tauranga on 1 April 2013 aged 92 years, leaving a will, dated 8 April 1999. Her executors and trustees are Colin Abernethy, her lawyer, and Diana Wishlaw, her daughter, who has renounced her right to probate. In her will Mrs Lewis made a bequest to a niece, which is not in issue. She left her residuary estate to her daughter with a gift over to her daughter’s three sons.

[2] Mrs Lewis had one other child, a son, Geoffry Lewis, who died in Canada, in

1989, aged 43. His children, Jason Lewis, now aged 43, and Christina Mold, now aged 45, have brought this claim under the Family Protection Act 1955, contending that Mrs Lewis failed in her moral duty to them to provide for their proper maintenance and support. In this, they contend also, she compounded her husband’s earlier breach, under whose 1989 will they did not benefit either.

[3] Until their father’s death in 1989, they say, Mr and Mrs Lewis treated their two children equally. Under trusts Mr and Mrs Lewis settled in 1957 their two children became equally beneficially entitled to shares in their family company, Len Lewis Limited; and those equal rights continued under a modifying arrangement in
1984. After their father’s death, however, they say, Mr and Mrs Lewis inexplicably preferred Mrs Wishlaw and her family, at a time when they themselves were in obvious need.

[4] The first issue to which this claim gives rise is as to the nature and extent of Mrs Lewis’s duty to her grandchildren, and that is most immediately an issue of law. The second is whether, as Mrs Lewis is said to have assumed, any duty she might have been under at the date of her death had already been met because of the rights her grandchildren enjoyed, under their father’s will, to his entitlement under the 1984 arrangement. The third is as to the extent to which Mrs Lewis’s duty was in any sense contingent on the extent to which her daughter, and by way of contrast her grandchildren, remained in contact with and supported her, especially as she grew older. The fourth is as to their needs for support and maintenance, in themselves, and relative to those of Mrs Wishlaw and her…

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 Lewis v Abernethy

Details

AGLC: Lewis v Abernethy [2014] NZHC 3081
Case: [2014] NZHC 3081
Decision Date: 4 December 2014

CaseChat Overview and Summary

The case of Lewis v Abernethy [2014] NZHC 3081 involves the grandchildren of Zelma Lewis, who died in 2013, seeking redress under the Family Protection Act 1955. Zelma Lewis left her estate to her daughter, Diana Wishlaw, excluding her grandchildren, Jason Lewis and Christina Mold. The grandchildren argue that Zelma Lewis failed in her moral duty to provide for their proper maintenance and support, and seek to have her will varied to include them. The central legal issues are the nature and extent of Zelma Lewis's duty to her grandchildren, whether her duty had already been met through their inheritance from their father, and the extent to which her duty was contingent on the level of contact and support from her grandchildren.

The Court found that Zelma Lewis did have a moral duty to her grandchildren, which she failed to fulfill. The grandchildren inherited nothing of immediate value from their father under a 1984 arrangement intended to benefit Zelma Lewis and her husband. They were left with only a right to be repaid a loan on Zelma Lewis's death and a right to the value of the company's shares once the building had been sold. At the time of Zelma Lewis's death, both grandchildren were in need of her support. Jason Lewis, an IT support administrator, and his wife have two young children and face significant debt. Christina Mold, a single mother supporting her teenage children, relies on child support and financial assistance from her mother.

Given these circumstances, the Court held that Zelma Lewis breached her moral duty to her grandchildren and ordered that they each receive 15% of her net estate. This award is higher than usual, reflecting the unique facts of the case where Zelma Lewis had subordinated the rights of her grandchildren under a 1984 arrangement to benefit herself and her husband. The costs of the litigation are to be met from the estate before distribution.

Orders