Mahon v Mahon - [2016] NZCA 642

IN THE COURT OF APPEAL OF NEW ZEALAND

CA574/2015
[2016] NZCA 642

BETWEEN

DAVID WILLIAM MAHON AND RACHAEL JANE MAHON
Appellants

AND

JOHN ROY MAHON AND DONALD COLIN GRANT MCKINNON AS THE EXECUTORS OF THE ESTATE OF MELVA EILEEN MAHON
First Respondents

JOHN ROY MAHON AND ROGER NEWTON STANICH
Second Respondents

Hearing:	26 September 2016
Court:	Winkelmann, Brewer and Toogood JJ
Counsel:	C T Gudsell QC and R S Walker for Appellants H Fulton for Second Respondents
Judgment:	22 December 2016 at 12 pm

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe appellants must pay the second respondents costs for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

Table of Contents

Para No
Background  [4]
Melva’s wills  [5]
The appellants’ challenge to the wills  [8]
Grounds of appeal  [11]
Approach on appeal  [12]
First ground of appeal: Judge erred in failing to find undue
influence
Relevant principles  [14]
Background facts  [15]
High Court judgment  [33]
Discussion  [39]
Second ground of appeal: Family Protection Act 1955  [76]
High Court judgment  [81]
Analysis  [84]
Result  [87]

Melva Mahon died in 2012, aged 88 years. Her husband Roy had predeceased her, as had her eldest son, Bill. Rachael and David Mahon, two of Bill’s three children, challenge their grandmother’s final three wills on the grounds that they were the result of undue influence exercised over Melva by her surviving son John. Alternatively, they allege that Melva had failed to make adequate provision for them in her final will, a claim brought under the provisions of the Family Protection Act 1955.
MacKenzie J’s rejection of both these claims is the subject of this appeal.[1]
[1]Mahon v Mahon [2015] NZHC 2143.
Bill’s estate had also brought a claim alleging that part of Melva’s estate was subject to a constructive trust in her sons’ (Bill and John’s) favour. That claim was dismissed by MacKenzie J and is not pursued on appeal.

Background

We gratefully adopt the Judge’s “thumbnail sketch of the family” set out in his judgment as follows:
[2] Melva and Roy were married in 1944. They had two sons: Bill was born in 1949 and John was born in 1953. Roy left work as a coal miner to found and run a business providing rides, sideshows and other entertainment at events such as Agricultural and Pastoral Society shows throughout the North Island. The family went on the road for several months each year, travelling to venues. Bill and John both helped out in the business during their childhood, but did not immediately go to work for the family company when they became adults. Bill trained as an accountant and worked in that field for a time. He joined the family company fulltime in about 1972. John trained as a teacher and taught for a time before he too joined the family company in about 1978. Bill and John over time assumed greater responsibilities in the business, while Roy eased…

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 Mahon v Mahon

Details

AGLC: Mahon v Mahon [2016] NZCA 642
Case: [2016] NZCA 642
Decision Date: 22 December 2016 at 12 pm

CaseChat Overview and Summary

Rachael and David Mahon appeal against the judgment of MacKenzie J dismissing their claims that their grandmother Melva's last three wills were the product of undue influence or that they were not adequately provided for in terms of the Family Protection Act 1955. The appeal is dismissed. The Court found that the appellants had not established undue influence. The appellants had not established that John exerted any undue influence over Melva in relation to the execution of the wills. The appellants' claim that they were not adequately provided for under the Family Protection Act 1955 was also dismissed. The appellants had not established that the provisions made for them in the wills were inadequate for their proper maintenance and support.

Orders