Mahon v Mahon - [2015] NZHC 2143

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2013-419-871 [2015] NZHC 2143

IN THE ESTATE OF MELVA EILEEN MAHON

IN THE MATTER OF

an application seeking the declaration of a constructive trust

IN THE MATTER OF

an application pursuant to the Family
Protection Act 1955

BETWEEN

SUSAN ELIZABETH MAHON First Plaintiff

DAVID WILLIAM MAHON AND RACHAEL MAHON

Second Plaintiffs

AND

JOHN ROY MAHON AND DONALD COLIN GRANT MCKINNON

First Defendants

JOHN ROY MAHON AND ROGER NEWTON STANICH

Second Defendants

Hearing: 13-17 and 27-30 July 2014

Counsel:

C T Gudsell QC and S C Dench for Plaintiffs

H Fulton and R W Bell-Booth for J R Mahon, his children, and the J R Mahon Family Trust

M D Branch for First Defendants, the executors of the estate of

Melva Eileen Mahon (leave to withdraw)
D M O'Neil for Second Defendants, the trustees of the Melva
Mahon Inheritance Trust (leave to withdraw)

Judgment:

4 September 2015

RESERVED JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is
4.45 pm on the 4th day of September 2015

MAHON v MAJOH [2015] NZHC 2143 [4 September 2015]

Table of contents

Introduction  [1] A thumbnail sketch of the family  [2] The business and associated properties  [7] Melva’s wills  [20] Melva’s Estate          [26] The Undue Influence claim  [27] (a)     The claim         [27]
(b)    General principles  [28] (c)    The previous equality between the two families  [34] (d)    Melva’s health  [40] (e)    Other evidence of undue influence on the three challenged wills        [42] (i)     The 2004 will  [44] (ii)    The 2006 will  [56] (iii)   The 2008 will  [63] (iv)   Overview of the undue influence claim  [77]
The Common Intention Trust claim  [82] (a)    The plaintiffs’ contention.  [82] (b)    General principles  [83] (c)    The Ngaruawahia properties  [86] (d)    The Farm  [91]
The Family Protection Act claim   [95] Result  [104]

Introduction

[1] Melva Mahon died on 29 October 2012 at the age of 88.1 Her husband Roy had predeceased her. She had two sons, Bill who died in April 2004, and John. This is a claim by Bill’s estate, and two of Bill’s three children, against Melva’s estate. There are three bases for the claim: first, that Melva’s will resulted from undue influence on the part of John; second, that some of Melva’s assets at the time of her death were subject to a constructive trust; and third, a claim is made under the
Family Protection Act 1955.

1 In this judgment I use first names for all members of the Mahon family for ease of reference. In doing so, I intend no disrespect.

A thumbnail sketch of the family

[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…

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 [2015] NZHC 2143
Case: [2015] NZHC 2143
Decision Date: 4 September 2015

CaseChat Overview and Summary

This case concerned a claim by the estate of the deceased's first-born son, Bill, and two of his children against the estate of the deceased, Melva, who died in October 2012. The plaintiffs' claims were based on the assertion that Melva's will resulted from undue influence on the part of her surviving son, John, that some of Melva's assets at the time of her death were subject to a constructive trust, and a claim made under the Family Protection Act 1955. The court rejected all claims, finding that Melva's will was the result of her own independent judgment, that there was no common intention constructive trust, and that there was adequate provision for the proper maintenance and support of the grandchildren.

Orders