Midgley v Brumby - [2022] NZHC 3158

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-001698

[2022] NZHC 3158

UNDER the Family Protection Act 1955, the Administration Act 1969, and the High Court Rules 2016

BETWEEN

IAN BERTRAM MIDGLEY

Plaintiff

AND

WARREN GRAHAM BRUMBY and JEAN

ISOBEL HARDING as executors of the Estate of Isobel Elizabeth Midgley Defendants

Hearing: 21 November 2022

Appearances:

S Ambler for the Plaintiff / Respondent

P W G Ahern for the Second Defendant / Applicant First Defendant excused

Judgment:

29 November 2022

JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 29 November 2022 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors:

Morrison Kent, Auckland Tompkins Wake, Auckland

MIDGLEY v BRUMBY & Anor [2022] NZHC 3158 [29 November 2022]

Introduction

[1] Isobel Elizabeth Midgley died in Auckland on or about 18 June 2020. She is survived by three children: the plaintiff, Ian Bertram Midgley; the second defendant, Jean Isobel Harding; and Graham Andrew Midgley.

[2] The first defendant, Warren Graham Brumby, is executor and representative of Mrs Midgley’s estate under the terms of a will executed by her on 17 December 2014. Under that will, Mrs Midgley gave $10,000 to each of her grandchildren and left the residue of her estate on trust to her daughter Mrs Harding.

[3] In this proceeding Mr Midgley applies to the Court under r 27.34 of the High Court Rules 2016 to recall grant of probate of the 2014 will, and for an order that he is entitled to apply for probate in common form of his mother’s earlier will executed in 1998. He claims that Mrs Midgley lacked testamentary capacity when she made the 2014 will, and that she was unduly influenced by Mrs Harding to make the will.

[4] Alternatively, if the Court considers the 2014 will was validly made, Mr Midgley applies under s 4(1) of the Family Protection Act 1955 for proper maintenance and support.

[5] In this interlocutory application, Mrs Harding applies for an order that Mr Midgley be directed to file an affidavit of documents “disclosing his full and complete financial position, including assets, liabilities and income, including in his personal capacity and in relation to the financial position of any trusts or which he is a trustee, and/or beneficiary, and/or in relation to any other sources of income.”

[6] Mr Midgley opposes the application, contending that the documents sought are not relevant because his claim under the Family Protection Act is based on a lack of “family recognition” by his mother, not financial need. Furthermore, even if relevant, the discovery is disproportionate and unnecessarily intrusive.

[7] The essential issue to determine is whether the information sought by Mrs Harding is relevant to an issue in dispute in the proceeding, and whether an order for its discovery would be proportionate and reasonable.

Background facts

[8] As noted, Mrs Harding and Mr Midgley are the two youngest children of the…

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 Midgley v Brumby

Details

AGLC: Midgley v Brumby [2022] NZHC 3158
Case: [2022] NZHC 3158
Decision Date: 29 November 2022

CaseChat Overview and Summary

Ian Bertram Midgley, a son of Isobel Elizabeth Midgley, has initiated proceedings against Warren Graham Brumby and Jean Isobel Harding, who is also Midgley's daughter and the executor of her estate, seeking to recall the grant of probate for a 2014 will and to be permitted to apply for probate of an earlier will executed in 1998. Midgley claims that his mother lacked testamentary capacity when she executed the 2014 will, and that she was unduly influenced by Harding to make that will. Alternatively, Midgley seeks proper maintenance and support under the Family Protection Act 1955. Harding, in turn, has applied for an order that Midgley provide an affidavit disclosing his financial position, including assets, liabilities, and income. Midgley opposes this application, arguing that the requested information is not relevant to his claim for family recognition, rather than financial need, and that the discovery is disproportionate and intrusive.

The court was required to determine whether the information sought by Harding is relevant to the issues in dispute and whether an order for its discovery would be proportionate and reasonable. The court considered the principles of relevance and proportionality, which are central to tailored discovery. The court also examined the respective positions of the parties, with Harding arguing that the applicant's financial position is relevant to the court's assessment of any breach of moral duty, while Midgley contended that the information sought was not relevant and was disproportionately intrusive.

The court held that the financial position of the applicant at the date of the testator's death is highly relevant to the court's assessment of whether there has been a breach of moral duty. The court found that Midgley should provide information that discloses his financial position as at the date of his mother's death, but that the discovery sought by Harding went beyond what was necessary to provide an accurate picture of Midgley's financial position. The court ordered that Midgley and Harding file and serve affidavit evidence setting out a proper statement of their respective financial positions at the date of Mrs Midgley's death, including their net asset positions and sources of income. The court also ordered that costs on the application were to lie where they fell, as neither party had been entirely successful.

This case highlights the importance of financial information in determining whether a testator has breached their moral duty to provide for their children, even if the child's claim is not based on financial need. The court's decision also emphasises the need for proportionality in discovery orders, and the importance of providing accurate and complete information to enable the court to make informed decisions.

Orders