McGrath v Simson

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2013-409-001716 [2015] NZHC 2644

BETWEEN

KAREN JANE MCGRATH,

JOHN GRAEME GARDNER, ANNA LOUISE COOK, SUZANNE JUDI DAVIES First Plaintiffs

AND

KAREN JANE MCGRATH

AS EXECUTOR AND TRUSTEE OF THE ESTATE OF

SALLY ELIZABETH SIMSON Second Plaintiff

AND

KAREN JANE MCGRATH AS TRUSTEE OF THE R & S SIMSON FAMILY TRUST

Third Plaintiff

AND

RUSSELL JAMES SIMSON

AS EXECUTOR AND TRUSTEE OF THE ESTATE OF

SALLY ELIZABETH SIMSON First Defendant

AND

RUSSELL JAMES SIMSON AS TRUSTEE OF THE R & S SIMSON FAMILY TRUST

Second Defendant

AND

RUSSELL JAMES SIMSON Third Defendant

Hearing:	12-13 October 2015
Appearances:	M J Wallace for Plaintiffs Defendant in person with McKenzie Friend Ms J A West
Judgment:	28 October 2015

JUDGMENT OF DUNNINGHAM J

MCGRATH v SIMSON [2015] NZHC 2644 [28 October 2015]

Introduction

[1]      Russell Simson and Sally Gardner became a couple in the mid 1990’s, both having been married before.   They married seven  years later in 2001.   Russell describes it as a happy marriage, where they shared common interests such as square dancing and spending time at Sally’s family bach in the Lewis Pass.

[2]      They recognised the need to structure their affairs to provide for each other should one die, but also to provide for their adult children from their respective earlier marriages.  With the help of their lawyer they set in place legal structures, involving the execution of mirror wills and the establishment of a family trust, to achieve that end.

[3]      The arrangements Sally and Russell put in place were put to the test sooner than expected as, sadly, Sally was diagnosed with Waldiston cancer.   Despite treatment she developed a secondary brain tumour.   She died in November 2009 after only eight years of marriage.

[4]      Difficulties   arose   between   Russell   and   Sally’s   adult   children   (the Gardner children) in the year following Sally’s death.  At the end of that year the Gardner children initiated Family Protection Act proceedings claiming their mother had breached her moral duty to them because her will left almost all her assets to the R & S Simson Family Trust, of which Russell was a trustee.   Russell was deeply aggrieved by this action which he saw as an affront to his late wife’s wishes.

[5]      In late 2012, the parties agreed to go to formal mediation.  They appointed Nicholas Davidson QC as the mediator.  The Gardner children and Russell were each legally represented.   The mediation took all day.   Eventually, at around 7.00 to

7.30 that evening, they signed a settlement agreement.  The next day, the lawyer for the Gardner children identified the agreement missed one important term and three more minor matters.   He telephoned the lawyer for Russell.   Russell’s lawyer acknowledged that the written document did not reflect all matters that had been agreed.   An addendum to the signed settlement agreement was prepared by the Gardner children’s lawyer reflecting the matters he thought had been omitted.

[6]      Russell initially refused to sign the addendum, asserting he would only be…