Marino v Macey - [2013] NZHC 2191

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CIV-2012-416-0295 [2013] NZHC 2191

BETWEEN CHARLENE BARNES MARINO Appellant

AND

BESSIE NGAHINA PARA MACEY First Respondent

BASIL MARINO Second Respondent

KATHLEEN MIHAERE Third Respondent

WILLIAM TE RURE Fourth Respondent

LYDIA MARINO Fifth Respondent

Hearing: 2 July 2013

Appearances:

D J Sharp for Appellant
C M Twigley for Respondents

Judgment:

28 August 2013

JUDGMENT OF KEANE J

This judgment was delivered by on 28 August 2013 at 11am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

Solicitors:
Burnard Bull & Co, Gisborne
Eastland Legal, Gisborne

MARINO v MACEY [2013] NZHC 2191 [28 August 2013]

[1] Bessie Taukuri Marino died on 12 September 2008 aged 94. In her will, dated 28 August 2003, she left the bulk of her estate to her oldest adopted son, Basil Marino, who lives in Australia but apparently intends to return to live in Tolaga Bay. The only bequests she made to her two adopted daughters, Gayle Marino and the appellant, Charlene Marino (formerly Kirchner), were interests as beneficiaries in a
‘whanau trust’ over land she owned next to her home, ‘for holidays and ... rekindling and strengthening their cultural and Hauititanga connections’.

[2] In October 2009 Charlene Marino brought in the Family Court this claim under the Family Protection Act 1955, contending that in her will Bessie Marino did not provide adequately for her maintenance and support. In breach of her moral duty as testatrix, Charlene Marino contended, Bessie Marino preferred Basil Marino at her expense. On the principle, she contended, that all siblings should be treated equally, she sought one seventh of the estate residue and an equal share in the land and shareholdings bequeathed to Basil Marino.

[3] There was no competing claim from Gayle Marino, Bessie Marino’s other adopted daughter, or from any of the four specific beneficiaries, one of whom was Bessie Marino’s executrix, her niece, Bessie Marino, and another was Daniel Steed, Bessie Marino’s whangai child, who is actually Charlene Marino’s natural child. Nor was there any claim by any of the whanau trust beneficiaries, Gayle Marino, Bessie Macey, and the four other whangai children. Bessie Macey as executrix filed a notice of intention to appear. Basil Marino and the four whangai children, apart from Daniel Steed, filed notices of defence.

[4] In his decision, dated 30 November 2012, Judge Adams held that a balance had to be struck between Bessie Marino’s desire to nurture her whanau by promoting Basil Marino as its leader and encouraging the others to share the land she bequeathed to them by whanau trust, a gift Charlene Marino was to share, and the fact that Bessie Marino did not more tangibly provide for her. In cash terms, the Judge said, Charlene Marino got a land interest worth ‘something like $10,000 ... out of an estate of approximately $440,000’. To redress the balance Judge Adams directed that Charlene Marino should cease to have any interest as beneficiary in the whanau trust land but…

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 Marino v Macey

Details

AGLC: Marino v Macey [2013] NZHC 2191
Case: [2013] NZHC 2191
Decision Date: 28 August 2013

CaseChat Overview and Summary

This appeal arose out of a claim by Charlene Barnes Marino under the Family Protection Act 1955 that her mother, Bessie Taukuri Marino, had failed to make adequate provision for her maintenance and support. The appeal was from a decision of Judge Adams, who found that Bessie Marino's will had not made adequate provision for Charlene Marino, but that her moral claim could be remedied by ordering that she receive some shareholdings in Maori Incorporations in place of her interest in the whanau trust land. Charlene Marino appealed, contending that the Judge awarded her less than she was entitled to for her support and maintenance, swayed by two irrelevant matters, whanaungatanga and hauititanga, as to which there was no evidence, and by the competing claims that could have been made. The appeal was dismissed. In the result, the award the Judge made in favour of Charlene Marino, an award of interests in Maori incorporations worth $29,468, accorded with principle and involved no error of discretion. The Judge recognised Charlene Marino had a right to some redress. The principles on which the Judge decided what that redress should be were consistent with principle. He exercised his jurisdiction conservatively as he was required to do. It was not for him, as the cases say, to rewrite Bessie Marino’s will.

Orders