Marino v Macey
[2013] NZHC 2191
•28 August 2013
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 RespondentsJudgment:
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 should receive, in place of Basil Marino, two shareholdings in
Maori Incorporations, one valued at $26,373 and the other $3,095.
[5] On this appeal Charlene Marino contends 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. He failed, she contends, to accord her financial need, and Bessie Marino’s related failure to provide for her, the priority that called for, set against the size of the estate and the comparative needs of other potential claimants, especially Basil Marino.
Estate and bequests
[6] At the date of her death, Bessie Marino had cash deposits of $34,443 but at the date of the decision under appeal they had been largely absorbed by her debts and the cost of the administration of her estate. Only $5,719 remains. Her principal interests lay in land and have been valued at $438,380. The unvalued aspects of her estate do not apparently greatly alter that picture.
[7] Bessie Marino’s principal beneficiary, her oldest adopted son, Basil Marino, received her Tolaga Bay home, on Maori freehold land, valued at $166,000. He received as well 4673 shares in Hauiti Maori Incorporation ($156,732), 528 shares in Pakarae Maori Incorporation ($26,373) and 41 shares in Whangara B5 Maori Incorporation ($3,095), together worth $186,200. In all his bequests came to
$352,200.
[8] By comparison the other specific bequests Bessie Marino made were small. Bessie Macey, Bessie Marino’s niece and executrix, received 81 shares in Mangaheia Blocks 2D Maori Incorporation ($14,197). Marlene Lawrence, presumably Marlene Mihaere, a whanau trust beneficiary, and if so also a whangai child, received 3030 shares in Mangatu Blocks Maori Incorporation ($2,983). Unvalued shares in Pukeroa Oruwhata Trust, the Kokako Trust and any other Maori land interest in the Waiariki District were left to two other whangai children, Daniel Steed and Gabrielle Lewis.
[9] Bessie Marino also left the block of land adjoining her home block on a
‘whanau trust’, as she described it, to her niece and executrix Bessie Macey, to her
two adoptive daughters, Gayle Marino and April Marino (as Charlene Marino is there described), and to her whangai children, Kathy Mihaere, Billy Te Rure, Lydia Marino, and Marlene Mihaere. This trust was to be subject to the following conditions:
(a) THAT this Block of land be vested in a Whanau Trust upon such trustees as the seven named beneficiaries shall decide.
(b) BE used by the Whanau beneficiaries for holidays and for rekindling and strengthening their cultural and Hauititanga connections.
(c) THAT no private homes or garages or sheds be erected on Paremata
2F7B but the trustees have the right to erect a communal ablution block and a communal dining hall and kitchen at their discretion.
(d) THAT all rates and ongoing maintenance on Paremata 2F7B be paid for by beneficiaries of the Whanau Trust in equal shares.
(e) ANY beneficiary unable or unwilling to meet this obligation to pay rates and maintenance may gift or sell their interest to another beneficiary or other family member at the then current rateable value.
[10] Bessie Marino gave to the trustees of her whanau trust $2,000 ‘to be used specifically for fencing, drainage and landscaping’. She also directed that, once all debts were met, including ‘the expenses of my funeral hakari and my unveiling expenses including a memorial stone and hakari’, the balance was to be held by them
‘to use in or towards the education of any of the beneficiaries of my Whanau Trust’.
Judge’s assessment and orders
[11] The Judge set out, in the most general sense, the basis for the orders which he made in favour of Charlene Marino just before he made those orders, and his general assessment bears repeating. In assessing the claim Ms Marino made, the Judge said this:1
[34] Although I am of the view that the provisions of the Will were carefully considered, I accept the submission that they do not make adequate provision for the applicant. On a commercial basis she has got, at best, something like $10,000 land interest out of an estate of approximately
$440,000.
[35] By contrast, the property given to Basil is very high although, of
1 CBK v BNPM [2012] NZFC 9313 at [34] – [41].
course, the Will can only be disturbed to the extent necessary to repair a breach of moral duty in respect of the applicant.
[36] There is no legal principle that children should be treated equally, although it is often a reference point. A person may make their Will as they choose subject to its being disturbed, but only disturbed to the extent necessary to repair any breach of moral duty.
[37] If the estate were notionally divided equally between the three surviving adopted children and the five surviving whangai children, each would receive $55,000 worth of property. If the respondent is included as a beneficiary (as she is) a one-ninth share is $48,000.
[38] I find that Bessie’s Will did not provide adequate provision for the applicant’s maintenance and support in two ways. Firstly, the form of gift, locked into the whanau trust, is unlikely to produce much that the applicant will recognise as valuable, and her participation in the whanau trust is likely to cause more problems than her inclusion is worth. Secondly, there is sufficient property in the estate to provide more to her.
[39] In my judgment the broad approach of Bessie to preserve the home and section adjoining the home for whanau who wish to participate, was a sound one. Her provision of the home itself to Basil, and the adjoining section to a group of others, is a wise allocation of those assets for a very good purpose that was of great significance to Bessie. Bessie recognised her moral duty to encourage a sense of ‘hauititanga’ and to empower those who could do so to provide a spiritual centre for the whanau. That moral duty extended through her adopted and whangai children to the whanaunga of those persons, a group much larger than seven or eight people. Bessie was responsible to the heart of the whanau. Individual needs such as those of the applicant are a small feature of a much larger worthwhile vision. I recognise the strong moral duty owed by Bessie to the extended whanau.
[40] The moral duty owed to the applicant by Bessie is not particularly high, in my view. At the age of 52, she has not only had the benefits of being adopted into the family, and the consequent upbringing, but she also had the additional advantage that her son Daniel was taken in as a whangai child. That relieved her of direct responsibility for Daniel.
[41] Although I have formed the view that the applicant has been as much a trial as a comfort to Bessie over the years, a different kind of provision would have been wiser.
[12] Against that background the Judge made the following orders:2
[42] In my judgment the appropriate outcome in this case will be a provision that recognises the position of the applicant as one of Bessie’s children, but accepts her desire to move separate from the body of the whanau by an individual allocation. The appropriate outcome will step some way towards satisfying a claim for the 52 year old applicant as a contribution to her future maintenance and support, but that must yield a bit to the competing moral duty towards the wider whanau recognised by Bessie. The
2 At [42] - [44].
orders I make achieve that outcome.
[43] I order that the provision to the applicant ‘April Marino’ under clause 4 of the Will shall be deleted so that she will have no share in the whanau trust.
[44] I order provision to her by bequest of 528 shares in Pakarae A Maori Incorporation ($26,373) and 41 shares in Whangara B5 Maori Incorporation (3,095). As a consequence Basil Marino will not receive those items.
Enlarged claim
[13] On this appeal Charlene Marino not merely contests as inadequate the allocation the Judge made to her. She responds seeking a half share in the block of land Bessie Marino left to the whanau trust, in which under the will she had a shared interest with other members of the extended family. The government value of that land is $69,000. Her half share would be $34,450.
[14] Whether or not she succeeds in obtaining that half share, she seeks the following allocation:
50% Mangaheia 2D ($14,197.00) $7,098.50 50% Hauiti ($156,732.00)
$78,366.00
Pakarae
$26,373.00
Whangara B5
$3,095.00
TOTAL
114,932.50
[15] The result is that if she succeeds in her full augmented claim, as it now is on this appeal, she would obtain interests worth $149,382.50, 33.6 per cent of the estate, assuming it has a value of $444,000. If she were to succeed instead in her lesser claim she will receive interests in the vicinity of 25.9 per cent.
Appeal principles
[16] This is an appeal under s 15 of the Family Protection Act 1955. It is a general appeal by way of rehearing3 but, as Wylie J has said, it is ‘a general appeal involving
the exercise of a discretionary judgment.’4
3 Family Protection Act 1955, s 15(1)A; District Courts Act 1947, ss 72, 75.
4 Haines v Chellew HC Auckland CIV-2004-404-4556, 21 October 2008 at [16].
[17] On a general appeal by way of rehearing, as this is, I must assess for myself the evidence at first instance and reach my own conclusion, though I may only intervene if the Judge at first instance made a material error of fact or law;5 and that is so even though in this case I am as well placed as the Judge. His decision rests, as must mine, on the affidavit evidence, which is spare. He did not have the advantage of seeing and hearing the deponents.
[18] I must also be conscious that in this category of case the discretionary character of the award called for under the Family Protection Act has always been emphasised. As the Court of Appeal recently said in Fisher v Kirby, in this category of case it is:6
... well settled and not in dispute that, on appeal, ... (the appeal) Court will not substitute its discretion for that of the Judge at first instance unless some reasonably plain ground is made out to vary the order made.
Jurisdiction and underlying principle
[19] Section 4(1) of the Family Protection Act is the source of jurisdiction:
If any person (referred to in this Act as the ‘deceased’) dies, whether testate or intestate, and in terms of his or her will or as a result of his or her intestacy adequate provision is not available from his or her estate for the proper maintenance and support of the persons by whom or on whose behalf application may be made under this Act, the Court may, at its discretion on application so made, order that any provision the Court thinks fit be made out of the deceased’s estate for all or any of those persons.
[20] The principle on which this jurisdiction is to be exercised remains as stated in
Little v Angus:7
The inquiry is as to whether there has been a breach of moral duty judged by the standards of a wise and just testator or testatrix; and, if so, what is appropriate to remedy that breach. Only to that extent is the will to be disturbed. The size of the estate and any other moral claims on the deceased’s bounty are highly relevant.
[21] In Fisher v Kirby the Court of Appeal made clear that in the cases since the
question has never ceased to be ‘whether there has been a breach of moral duty
5 Austin, Nichols & Co Inc v Stitchting Lodestar [2008] 2 NZLR 41 (SC) at [16].
6 Fisher v Kirby [2012] NZCA 310 at [124].
7 Little v Angus [1981] 1 NZLR 126 (CA) at 127.
judged by the standards of a wise and just testator or testatrix and, if so, what is
appropriate to remedy the breach.’8
The more recent decisions ... have re-emphasised what has always been understood: that mere unfairness is not sufficient to warrant disturbing a testamentary disposition and that, where a breach of moral duty is established, the award should be no more than is necessary to repair the breach by making adequate provision for the applicant’s proper maintenance and support.
[22] No issue can be taken with the Judge’s appreciation of these principles, which
as he said himself are hardly novel. Under s 4, as he said, succinctly:9
The applicant must prove that ‘adequate provision’ has not been made for her ‘proper maintenance and support’ so that the Court may, at its discretion, order further provision to her. Although it is not mentioned in the Act, the term ‘breach of moral duty’ commonly appears in decisions on this topic.
[23] The issue on this appeal is whether the Judge erred in the two ways contended for beginning with whether, without any relevant primary or expert opinion evidence, he gave undue emphasis to the notions of whanaungatanga and hauititanga.
Hauititanga and whanaungatanga
[24] Hauititanga and whanaungatanga did play a significant part in Judge Adams’ analysis. When speaking of whanaungatanga, as against individual commercial benefit for instance, the Judge said:10
Bessie had been a rallying identity for her whanau for decades, both in her person and her home. Many children had been brought up in her home. Others, like the respondent, had close relationships with her and cemented those relationships as adults.
[25] Then, noting that Bessie Marino had herself used in her will the term
‘hauititanga’, he went on to say:11
In my estimation, the recognition of whanaungatanga that is implicit in the gifts to Basil and the additional seven favoured persons who are offered participation in the whanau trust, is highly significant. I can well understand
8 Fisher v Kirby, above n 6, at [118].
9 CBK v BNPM, above n 1, at [26].
10 At [30].
why some whanau members use words like ‘selfish’ to describe the applicant’s rejection of that opportunity. The applicant does not share or appreciate those values that are enshrined in those gifts.
[26] These two concepts, and what was to be ascribed to them, was in issue before the hearing. At the second of the pre-trial hearings on 27 August 2012 Judge McHardy said this:12
In respect of the issue concerning Tikanga Maori, which has been raised by Mr Sharp in his memorandum, it is accepted that unless there is expert opinion to confirm that there is an issue for the Court to consider, the issue is not a matter that would be given any weight at all by the hearing Judge. That is accepted by Mr Twigley.
[27] There was no such primary or expert opinion evidence at the hearing and thus the issue does arise whether the Judge erred in giving hauititanga and whanaungatanga such prominence.
Related authorities
[28] In Mahu v New Zealand Guardian Trust Co Ltd Richardson J said:13
It is accepted ... that when dealing with Maori families the Court must pay regard to the strong attachment of the Maori to the land and to closely held deeply felt feelings within the family in that respect.
[29] What that can require in a case like this depends on the case. In Re Kupa (dec’d): Haronga v Harmer14 the testator, who had left his very small estate to one of his surviving ten children, was found to have breached his moral duty to the others by failing to recognise the intrinsic significance of his Maori land interests.
[30] In Re Green (dec’d): Green v Robson,15 by contrast, where there was no evidence as to the reasons for disposition or any of Maori custom, the case was decided conventionally. A son with an overwhelming claim on the basis of need had the entire estate vested in him. In Re: Stubbing16 the Court held that where a claim
had merit competing claims based on Maori custom could not override it.
12 CBK v BNPM FAM-2009-016-000408, 27 August 2012 at [6].
13 Mahu v New Zealand Guardian Trust Co Ltd CA144/89, 29 March 1990 at [10].
14 Re Kupa (dec’d) [1997] NZFLR 193 (HC).
15 Re Green (dec’d) [1955] NZFLR 330.
16 Re: Stubbing [1990] 1 NZLR 428 (HC).
Conclusions
[31] What distinguishes this case is that Bessie Marino herself gave prominence in her will to whanaungatanga and hauititanga. She was equally explicit as to the effect she gave those principles. The Judge was obliged to give those principles equivalent prominence in his decision. He had no need for wider evidence.
[32] Conversely, I consider, Charlene Marino, in the claim she made originally and on this appeal, does not take into account how important those principles were to Bessie Marino and, as it appears, the other members of the wider family. Her desire, most especially, for a one half share of the whanau trust land does violence to Bessie Marino’s clear wishes.
Financial need
[33] The issue then becomes whether, in preferring Basil Marino to the full extent that she did, Bessie Marino failed in her moral duty to provide for Charlene Marino; and whether the Judge failed to recognise this issue for what it was and to vindicate Charlene Marino’s moral claim in his decision.
[34] The Judge was certainly very much alive to the nature of Charlene Marino’s
claim and he expressed it accurately, when he said this:17
At the hearing she sought a substantial portion of the estate with a view to housing herself and having property to have recourse to. Because no-one else was making a positive claim for more, her case was advanced upon the basis that her claim should really be considered against that of Basil.
[35] The Judge was equally clear as to why he rejected Charlene Marino’s claim
in the sense in which she advanced it. He said:18
This case is not one between her and Basil. It is her claim against the estate seeking such further provision as may be necessary to satisfy her moral claim and, in that process, I must take into account the right of the deceased to dispose of her property as she wishes (subject to such a claim), the competing moral claims of the whanau generally and of other whanau members, the extent of the estate and the particular needs of the applicant.
17 CBK v BNPM, above n 1, at [24].
[36] The Judge also said that, in advancing her claim, Charlene Marino was opposed by the other members of the family, some of whom had benefited under the will but not greatly. As he said:19
... the combined voice of other beneficiaries is raised in strong opposition to the applicant’s claim. It is true that none of them seek extra provision for themselves, but this is not a claim brought in a vacuum without opposition.
[37] The issue then is whether, in the award the Judge did make in favour of
Charlene Marino, he still failed to accord to her what she was entitled to in principle.
Related authorities
[38] In Williams v Aucutt the Court held that ‘proper maintenance and support’, the ‘composite expression’ supplying the only basis for a claim, and thus the Court’s jurisdiction, requires a broad approach in which ‘moral and ethical considerations are to be taken into account in determining the scope of the duty’.20 It said this:21
‘Support’ is used in its wider dictionary sense of ‘sustaining, providing comfort’. A child’s path through life is supported not simply by financial provision ... but ... by recognition of belonging to the family and of having been an important part of the overall life of the deceased.
[39] What constitutes proper support, the Court said, involves ‘a matter of judgment in all the circumstances of the particular case’, and it is not simply a monetary issue. It can include such considerations as ‘lifetime gifts or a bequest of family possessions precious to its members and often part of the family history’. Whatever form it may take the issue is whether the bequest the claimant has received is ‘so small as to leave a justifiable sense of exclusion from participation in the family estate’.
[40] In that case Blanchard J, especially, deprecated any ‘expansive view’ as to
‘the power of the Court to refashion the will of a deceased in order to fulfil what has
been regarded as his or her moral duty’.22 He went on to say this:23
19 At [25].
20 Williams v Aucutt [2000] 2 NZLR 479 (CA) at [52].
21 At [52].
22 At [68].
It is to be remembered that the Court is not authorised to re-write a will merely because it may be perceived as being unfair to a family member, and it is not for a beneficiary to have to justify the share which has been given. Rather, it is for a claimant to establish that he or she has not received adequate provision for proper maintenance and support.
And this:
It is not to be assumed that merely because a claimant, no matter what his or her personal substance, has been a dutiful child to the deceased, it will necessarily be appropriate to order some provision or further provision. In some cases a mere acknowledgement of the relationship may be the most that can be expected.
Once again any claim had to be weighed relatively against other ‘competing claims’.
[41] In Henry v Henry the Court again emphasised the need to be conservative where, as here, the claim is founded on financial need as opposed to some broader need for support or both. In all instances, the Court said, the principle remains the same, but a claim based on financial need can be assessed, ‘with greater precision, and with less room for broad value judgments, than in cases where the need is more
of a moral kind’. And thus the Court said:24
The conservative approach requires that the Judge makes the assessment of what is required on a basis which focuses on what is necessary to make adequate provision but to do no more than that. Broader questions of desirability of greater awards or the Judge’s views of fairness should not come into play.
[42] Finally, in Fisher v Kirby the Court of Appeal held that while the consistent trend of authority was that awards should not be ‘unduly generous’, they should not be ‘unduly niggardly’ either. So much depends on the size of the estate and the latitude that gives to take into account the claims competing.25
[43] Just how conservative the jurisdiction given is, however, is strikingly illustrated in Auckland City Mission v Brown where the testator, whose estate was worth $4.6M, set up a $1M trust fund for his sole child’s children, forgave her share of a debt, left her some shares, as a result of which she received $30,000, and left the
balance of his estate to three charities.26 The daughter was not well off but not in financial need. Her home was mortgaged and she had few other assets. In this Court she was awarded 35 per cent of the estate, $1.6M. On appeal that was reduced to
$850,000.
Conclusions
[44] Charlene Marino’s claim for a larger share rests on the argument that she should have a one-third share because the adopted children should share equally. That is inconsistent with the variety of claims which Bessie Marino sought to reconcile in her will, which extended beyond the adopted children. It is also wrong in principle, as the cases make clear.
[45] Bessie Marino was entitled to decide for herself how she wished to distribute her estate amongst her adoptive and whangai children. Clearly she saw them all as important but she did not see that as inconsistent with her decision to prefer Basil Marino to the extent she did. The wider family have accepted her wish. Charlene Marino has not. The Judge recognised Charlene Marino had a right to some redress.
[46] The principles on which the Judge decided what that redress should be are 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.
Outcome
[47] In the result I conclude that the award the Judge made in the decision under appeal in favour of Charlene Marino, an award of interests in Maori incorporations worth $29,468, accords with principle and involved no error of discretion. I dismiss the appeal.
[48] Ordinarily, on the principle that costs follow the event, that would call for an award of costs and disbursements in favour of the estate. If the estate wishes to
pursue costs that is to be by memorandum filed within 10 working days of the date
26 Auckland City Mission v Brown [2002] 2 NZLR 650 (CA).
of issue of this decision. Any reply is to be filed within the succeeding 10 working
days.
P.J. Keane J
0