Martin v Finlayson - [2016] NZHC 81

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2015-470-000144 [2016] NZHC 81

BETWEEN
IAN HENRY ADDISON MARTIN

Appellant

AND

MAVYN MAGDALENE FINLAYSON, ANDREA VERVAIN BARBOUR, DIANA CHERYL PRICE AND FRANK WINSTON ADDISON MARTIN

First Respondents

PUBLIC TRUST Second Respondent

Hearing: 3 February 2016

Counsel:

R E Webby for Appellant
K J Catran for First Respondents
L K Speed for Second Respondent

Judgment:

17 February 2016

JUDGMENT OF FOGARTY J

This judgment was delivered by me on 17 February 2016 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors: Webby & Associates, Tauranga Cooney Lees Morgan, Tauranga Holland Beckett, Tauranga

MARTIN v FINLAYSON AND ORS [2016] NZHC 81 [17 February 2016]

Introduction

[1] The appellant appeals against the judgment of the Family Court at Tauranga (Judge Coyle), in which the Court amended the will of the appellant’s mother, Mrs Martin.1 She and her deceased husband had five children who, at the date the will was made, in June 2011, ranged in age from 55 to 60 years. The only significant asset of her estate was her family home which she occupied with one of her two sons, the appellant.

[2] By her will, Mrs Martin divided her estate equally between all her children but subject to the right of the appellant, Ian, to continue to live in her home rent-free for ten years beyond the date of her death.

[3] To achieve this goal, cl 4.3 of her will provided:

4.3My Trustee will let my son IAN HENRY ADDISON MARTIN live in my home rent free until the earliest of the following (“the expiry date”):-

1) He has died.

2)

My Trustee has decided that my son IAN is not living permanently in my home. My Trustee may disregard temporary absence when making such a decision, which shall be binding on my beneficiaries.

3)

10 (Ten) years has passed from the date of my death.

[4]

The Family

Court judgment amended cl 4.3 deleting sub-cl (3)

and

substituting it with “31 December 2015”.

[5] The effect of the amendment is to remove a period of about seven years, left of the ten-year period, from any right of occupancy by her son. That amendment is to the benefit of the appellant’s three sisters and one brother.

[6] The Family Court was exercising the jurisdiction granted to it through s 4(1)

of the Family Protection Act 1955, which provides:

4 Claims against estate of deceased person for maintenance

1 Mavyn Magdalene Finlayson v Public Trust [2015] NZFC 7343.

(1) 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,…

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 Martin v Finlayson

Details

AGLC: Martin v Finlayson [2016] NZHC 81
Case: [2016] NZHC 81
Decision Date: 17 February 2016

CaseChat Overview and Summary

The appellant, Ian Martin, appealed against a decision of the Family Court to amend the will of his late mother, Mrs Martin. The amendment reduced the period of a life interest in the family home that Ian had been granted by his mother from 10 years to until 31 December 2015. Ian’s mother had left her estate to be divided equally among her five children. She had also granted Ian a life interest in her family home, rent-free, for 10 years. The four other children argued that the grant of a life interest to Ian constituted a breach of moral duty, as the provision for Ian was grossly disproportionate to the provision for his siblings. The Family Court agreed with the four siblings and amended the will as they had sought. Ian appealed the Family Court’s decision. Ian argued that the Family Court had erred in law by substituting its view for that of his mother, and by considering what a wise and just testatrix would have done. The Court of Appeal held that the Family Court had erred in law. The Court of Appeal found that the Family Court had not applied the correct legal test in determining whether the mother had breached her moral duty. The Court of Appeal held that the question that should have been asked was whether a wise and just testatrix could have given Ian a ten-year life interest. The Court of Appeal found that the Family Court had erred by asking whether a wise and just testatrix would have given Ian a ten-year life interest. The Court of Appeal also found that the Family Court had erred by balancing the contributions of Ian against those of his siblings, when determining whether there had been a breach of moral duty. The Court of Appeal held that the Family Court had not applied the correct legal test in determining whether the mother had breached her moral duty. The appeal was allowed. The will was not amended. The appellant was entitled to costs in this Court and in the Family Court. Costs were reserved.

Orders