Monckton v Donald
[2025] NZHC 785
•4 April 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2023-404-2065
[2025] NZHC 785
UNDER The Family Protection Act 1955 IN THE MATTER OF
The estate of BRENDA EILEEN DASSLER
BETWEEN
HELEN EILEEN MONCKTON, CHERYL BARBARA PARKER and SUSAN
BRENDA DASSLER
PlaintiffsAND
PENELOPE JANE DONALD and PHILLIPA ANNE MONTEITH, as
executors and trustees of the estate of BRENDA EILEEN DASSLER
Defendants
Hearing: 6 March 2025 Appearances:
L W Dixon for the plaintiffs R J Harte for the defendants
Judgment:
4 April 2025
JUDGMENT OF BLANCHARD J
This judgment was delivered by me on 4 April 2025 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Patterson Hopkins Lawyers, Auckland Rob Harte Lawyer, Whangārei
MONCKTON and OTHERS v DONALD and MONTEITH [2025] NZHC 785 [4 April 2025]
[1] Brenda Dassler died on 10 August 2022 leaving a will dated 18 November 2010. Probate of will was granted to the defendants, Penelope Donald and Phillipa Monteith, who are two of Brenda’s1 seven daughters.
[2] The plaintiffs, Helen Monckton, Cheryl Parker and Susan Dassler, who are three of Brenda’s other daughters, seek further provision under s 4 of the Family Protection Act 1955 (the Act) from her estate on the basis that the will failed to make adequate provision for their proper maintenance and support.
The will
[3] Under her will, Brenda left legacies totalling $44,000 to her 18 grandchildren, a legacy of $10,000 to each of Helen and Susan, a legacy of AUD 10,000 to Cheryl and divided the residue of her estate, net of costs and liabilities, equally between the defendants and Brenda’s other two daughters, Judith Yurak and Lynne Simpson.
[4] At the time Brenda made her will, she received advice from her solicitor about the possibility of a claim being made under the Act. Specifically, she was told that the plaintiffs would more than likely bring a claim as they were to receive considerably less than Brenda’s other daughters and because Helen, who is a lawyer, would know the relevant law. Brenda was also told that, if a claim was brought, it would more than likely be successful. Nevertheless, she proceeded to make the will.
The estate
[5] The defendants, as executors, have filed an affidavit that records that the estate has net assets (not allowing for unbilled legal costs) of $1,207,613.53. It is likely that the estate, after expenses, will be in the vicinity of $1,100,000 to $1,150,000.
The position of Judith and Lynne
[6] Judith and Lynne were served with the claim but have taken no steps in the proceeding.
1 To avoid confusion and meaning no disrespect, I use first names.
Family background
[7] Brenda married her late husband, Leslie Dassler, in 1951. Their seven daughters were born between 1952 and 1961. The plaintiffs are the three eldest daughters.
[8] The evidence paints a picture of what ultimately became an unhappy marriage between Brenda and Leslie. This led to them separating in 2002. They commenced protracted relationship property negotiations which were not concluded before Leslie’s death in January 2006.
[9] The plaintiffs say that both Brenda and Leslie came to believe that their daughters were taking sides in the divorce. They say their parents perceived the plaintiffs as being on Leslie’s side and the defendants and Judith and Lynne as being on Brenda’s side. The plaintiffs believe that this perception led to a deterioration of their sisters’ relationships with Leslie and their relationships with Brenda. This, they say, goes a long way to explaining the terms of both Leslie’s will, which I will shortly describe, and Brenda’s will.
[10] Helen and Susan were executors of Leslie’s estate. This meant that they became responsible for finalising the relationship property negotiations between Leslie’s estate and Brenda. This placed further pressure on their relationship with Brenda.
[11] The plaintiffs also say that, as a result of the breakdown of their relationships with Brenda, they saw very little of her from the early to mid-2000s until her death.
Leslie’s estate
[12] In 2004, Leslie was diagnosed with prostate cancer. He recovered initially, but in September 2005, his illness returned and his condition became terminal. He made his last will in December 2005 and died in January 2006.
[13] Helen cared for Leslie during the final 20 months or so of his life. During this time, she was a solicitor in sole practice. She took a substantial amount of time off
work to care for her father. Her business and income were significantly reduced as a result. She says that she forewent income of at least $100,000 per annum in the period she was caring for Leslie.
[14] Probate of Leslie’s will was granted to Helen and Susan in February 2006. Under his will, Leslie divided his estate, net of costs, into two equal shares. One half share was to be divided equally between each of the plaintiffs and Lynne. The other half share was to be divided equally between Leslie’s grandchildren living at the date of his death and who had attained the age of 30 years.
[15] The plaintiffs and Lynne thought that Leslie’s decision to exclude the defendants and Judith from his estate was unfair and agreed to enter into a compromise to address this. The result was that Cheryl, Susan and Lynne agreed that their shares of Leslie’s estate would be shared equally with the defendants and Judith. Helen’s share did not end up being included in this adjustment in view of the care and support she provided Leslie during his illness and the income that she had consequently foregone.
[16] Leslie’s estate had a net value of $482,000 after $50,000 had been deducted to make a relationship property payment to Brenda. From the half share of $241,000 that went to his daughters, Helen received $60,250 and, as a result of the agreed adjustment, each of the other daughters received $30,125.
Claims under s 4 of the Act
[17] Under s 4 of the Act, if “adequate provision” is not provided under a will (or the rules of intestacy) “for the proper maintenance and support” of a person, the Court may “order that any provision the court thinks fit be made out of the deceased’s estate” for that person.
[18] The inquiry under s 4(1) is whether there has been a breach of moral duty judged by standards of a wise and just testator, and, if so, what is appropriate to remedy that breach.2
2 Little v Angus [1981] 1 NZLR 126 (CA) at 127.
[19] An application can be based on economic considerations or moral and ethical ones.3 In many cases, it will involve a “compendious inquiry” into both these considerations.4
[20] If the claim is based on economic considerations, evidence must be provided of the applicant’s actual income and prospective earning potential and his or her capital assets.
[21] There could be a moral obligation to make provision for an applicant who is financially comfortable. This could, for example, be because of the need to recognise the place that the applicant had in the deceased’s family.5
[22] The size of the estate and any other competing moral claims are highly relevant.6 When the fund is large, the complaint may simply be that the testator failed to make sufficient provision for the claimant out of the abundance of his or her resources. However, when the estate is small, the applicant may be competing with other moral claimants and complaining about the unjust distribution of an inadequate fund to meet all the moral claims.7
[23] Mere unfairness is insufficient.8 So too is mere disparity in the treatment of beneficiaries.9 There is no presumption of equal sharing between children.10
[24] If a breach of moral duty is established, it is not for the Court to be generous with the testator’s property beyond ordering such provision as is sufficient to repair the breach. The award to the applicant should be no more than the minimum necessary to make adequate provision. Beyond that point, there is no basis for the Court to override the testamentary freedom of the testator.11
3 Williams v Aucutt [2000] 2 NZLR 479 (CA) at [38]–[39], [52], [60]–[64] and [69].
4 Auckland City Mission v Brown [2002] 2 NZLR 650 (CA) at [34]–[35].
5 Williams v Aucutt, above n 3, at [52] and [69].
6 Little v Angus, above n 2, at 127.
7 Williams v Aucutt, above n 2, at [40].
8 Re Leonard [1985] 2 NZLR 88 (CA) at 92; Williams v Aucutt, above n 3, at [68] and [70]; Auckland City Mission v Brown, above n 4, at [33]; and Henry v Henry [2007] NZCA 42, [2007] NZFLR 640 at [55].
9 Williams v Aucutt, above n 3, at [50]–[51].
10 Barnard v Robertson [2023] NZCA 230, [2023] NZFLR 103 at [48]–[49].11 Williams v Aucutt, above n 3, at [70]; Auckland City Mission v Brown, above n 4, at [36]; and
Henry v Henry, above n 8, at [54]–[55].
[25] The fact that there has been an estrangement between a parent and a child does not mean there cannot be a breach of moral duty. There are many cases in which the courts have had to consider estrangement and have made awards when the responsibility has rested with the testator, or at least not with the claimant.12
[26] However, in general, the obligation of a parent to a child will largely be defined by the relationship that existed between them during their joint lives.13
[27] Unless the Court otherwise determines, the burden of an order under the Act is to be borne rateably by the whole estate. The Court has the power to exonerate any part of the estate from the incidence of the order but is required to hear any parties who may be affected by the exoneration as it thinks necessary. For that purpose, it may direct any administrator to represent, or appoint any person to represent, any such party.14
The claim and defence
[28] Helen and Susan are both financially comfortable. Their claim is based solely on the need to recognise their place in Brenda’s family. In contrast, Cheryl’s claim is also based on financial need.
[29]The plaintiffs make the following contentions in support of their position:
(a)When Brenda made her will, she was mistaken about the agreement to redistribute Leslie’s estate that I have referred to above, and her mistaken beliefs were such that I should be inclined to intervene and disturb the provisions made in the will.
(b)While their relationships with Brenda were marked by lengthy periods of minimal contact, the breakdowns in their relationships were driven in large part by Brenda’s, not altogether accurate, perception that they had sided with Leslie after their parents separated. Brenda bore some
12 Moon v Carlin HC Auckland CIV-2010-404-5486, 23 February 2011 at [28]–[29].
13 Flathaug v Weaver [2003] NZFLR 730 (CA) at [32].
14 Family Protection Act 1955, s 7(1) and (2).
responsibility for their estrangements. In the circumstances, they should not receive less than their sisters from the will.
(c)Cheryl is in financial need and is the only one of seven daughters in that position. She therefore stands in a different position and greater provision should have been made for her.
(d)The estate is “moderately large”, and the number and size of claims are not great. Accordingly, there is no need to have regard to competing claims.
[30]The orders sought by Helen, Cheryl and Susan are that:
(a)the legacies of $10,000 to Helen and Susan are increased to $100,000; and
(b)the legacy of AUD 10,000 to Cheryl is increased to $400,000.
[31] The defendants oppose any adjustment to the terms of the will. They dispute the plaintiffs’ contentions and says as follows:
(a)Brenda was not mistaken about the redistribution of Leslie’s estate when she made her will.
(b)The plaintiffs are more responsible for their estrangements than Brenda.
(c)Cheryl is not in financial need.
(d)The estate is relatively small and there are a significant number of claims against it, so regard must be had to competing claims.
(e)The defendants and their families both had loving and close relationships with Brenda.
(f)Penelope is also in financial need.
[32] The defendants’ position is that the legacies to the plaintiffs are appropriate. Alternatively, if there is found to be a breach of moral duty, they say that the legacies to the plaintiffs should be increased to no more than $50,000 each.
The alleged mistaken beliefs
[33] In Henry v Henry, the Court of Appeal held that the testator’s incorrect factual beliefs and assumptions were something that could be considered when determining whether there had been a breach of moral duty and when fixing the award required to remedy the breach.15
[34] The plaintiffs say that, when Brenda made her will, she mistakenly believed that, while Cheryl, Susan and Lynne had an intention to share their entitlement under Leslie’s will with the defendants and Judith, no redistribution in fact occurred. Further, they say that Brenda may also have mistakenly believed that the reason the proposed redistribution never occurred was because Helen somehow “scuppered” it.
[35] The plaintiffs’ argument that Brenda was mistaken arises from cl 5 of her will. Clause 5 records some matters relevant to the provisions made in the will. These include the following:
b.I have made a lesser provision for my daughters Helen, Susan and Cheryl because they were provided for under my late husband’s will however my daughters Penelope, Phillipa and Judith were excluded from his will.
c.My daughters Cheryl, Susan and Lynne were provided for in my late husband’s will, but I want to acknowledge their intention to share their entitlement under my late husband’s will with their sisters Penelope, Phillipa and Judith.
[36] The plaintiffs also rely on a file note by Brenda’s solicitor of 18 November 2010 (the same date the will was executed), which includes the following:
When her late husband died he left his estate to the [sic] Helen, Susan, Cheryl and Lynne and left out the three younger girls. However, the girls that were provided for intended to share the estate between all of the daughters equally. Unfortunately Helen changed her mind and decided she didn’t want to do this.
15 Henry v Henry, above n 8, at [21] and [68].
[37] The defendants deny that Brenda was mistaken. They say that the fact that there had been a redistribution was not a secret. Penelope says that Brenda was living with her at the time the redistribution occurred. She says it was discussed openly in front of her, with Phillipa present as well. Penelope says that Brenda knew of the inheritance that she had received as a consequence of the redistribution.
[38] Despite this evidence, the impression I am left with is that Brenda was mistaken. This is the only way to explain the use of the word “intention” in the will and “intended” in the file note. These documents were written by a lawyer who would have used these words advisedly. Had Brenda understood that Cheryl, Susan and Lynne had in fact shared their entitlement under Leslie’s will with the defendants and Judith, the will and the file note would surely have made that clear. It would have referred to an agreement by them to do so.
[39] Further, the final sentence in the quotation from the file note above does suggest that Brenda mistakenly believed the redistribution did not occur because of a change of mind by Helen.
[40] My conclusion is that Brenda was subject to incorrect factual beliefs and assumptions when she made her will.
Estrangement
[41] The plaintiffs say that this is a case where what they describe as the “normal rule” in McKenzie v Thomas applies.16 In that case, the Court of Appeal said:17
Normally, both parties must take some share of the blame when there is an estrangement in the family. On our reading of the evidence we find it difficult to accept that the normal rule did not apply in this case …
[42] The plaintiffs have acknowledged that their relationships with Brenda were marked in all three cases by lengthy periods of minimal contact, albeit they all say there was a degree of reconciliation shortly before Brenda’s death. They say that the
16 McKenzie v Thomas CA120/02, 14 November 2002 at [13] and [16].
17 At [10].
breakdown of their relationships with Brenda was driven in large part by Brenda’s perception that they had sided with Leslie after he and Brenda separated. They say that perception was not altogether accurate. Further, they say that Brenda must bear some responsibility for the estrangements.
[43] The defendants place the blame for the estrangements on the plaintiffs. They say that the plaintiffs estranged themselves from Brenda. They say that Brenda was glad that the plaintiffs cared for Leslie and she did not hold that against them. They also say that Brenda found the estrangements hard and that she made attempts to reconnect with the plaintiffs but was met by a lack of response. They say her attempts to reconnect reduced over time as she became disheartened by the lack of response, but she never gave up trying to reconcile.
[44] As is usual in family protection proceedings, there was no cross-examination in this case.18 However, I have read all the affidavits filed by the parties carefully, and, having done so, I have reached the clear view that this is not a case where there are clear-cut reasons that explain the estrangements. This is not a situation where one side has acted badly towards the other or where it is otherwise obvious that one side or the other is at fault. I am not able to point to any particular reason why the estrangements occurred. In the end, I am left with the impression that the plaintiffs are right that this is a case, as in McKenzie v Thomas, in which the “normal rule” applies and both the plaintiffs and Brenda must take some share of the blame for the estrangements.
[45] However, it does not follow from this that the plaintiffs should be treated the same as their siblings. Whatever the reasons for their estrangements, I cannot ignore the fact that their relationships with Brenda were very limited.
Cheryl’s financial position
[46] Financial need is a broad concept that includes the income and assets of the claimant, their financial needs for lodging, education, age and health related costs, their social standing and expected lifestyle, and their responsibilities for others.19
18 Re Meier (deceased) [1976] 1 NZLR 257 (SC) at 258.
19 Bradshaw v Barry [2024] NZHC 3287 at [75], citing Nicola Peart (ed) Family Law — Family Property (online ed, Thomson Reuters) at [FP4.08(5)(a)].
[47] Cheryl is a retired nurse living on the Sunshine Coast in Queensland, Australia. Her sole substantial asset is savings of approximately AUD 316,000 in her bank account. Most of her savings represent the proceeds of sale of her home, which she sold at the beginning of 2024. Her only income is a pension of AUD 2,250 per month and interest on her savings.
[48] At present, Cheryl is living with her daughter Jennifer and her family. She is paying $400 per fortnight towards household outgoings. She does not believe this arrangement is suitable in the longer term. She strongly wishes to purchase a unit so she can resume living independently while also remaining nearby to Jennifer and her family so she can continue to provide them with support.
[49]Cheryl’s seven-year-old grandson, Charlie Frank. [Redacted]
[50] Cheryl would like to buy a two-bedroom unit so that, when Charlie is with her, he has his own room. She considers that he requires his own room within which he can regain his equilibrium when his behaviour deteriorates.
[51] I have been provided with a printout showing the prices of two-bedroom units in the Sunshine Coast area. The lowest prices are in the range of roughly AUD 500,000 to AUD 700,000. Cheryl says that, on this basis, even a modest unit would cost more than her savings.
[52]Based on the foregoing, I accept that Cheryl is in financial need.
The size of the estate and the number of claims against it
[53] This is an important consideration in this case. As I have said, the residue of the estate is expected to be, after deduction of expenses, in the range of $1,100,000 to $1,150,000. This is a significant sum of money. However, I agree with the defendants that the residue of the estate is not so large that there is no need to have regard to competing claims. This is particularly so because Brenda’s family is so large. An important factor is that Brenda had seven children. The size of the estate, and the fact that there are seven claimants to the funds (not including the grandchildren),
means that it is not possible to simply consider the plaintiffs’ claims without also having regard to the competing moral claims of the other daughters.
The defendants’ relationships with Brenda
[54] As Judith and Lynne have not taken part in the proceedings, I have no details regarding their relationships with Brenda. However, the defendants have provided considerable evidence about their relationships with their mother. It is clear that they, and their families, had loving and close relationships with Brenda. They were heavily involved in her life and provided her with fulsome care and support.
Penelope’s financial position
[55] Like Helen and Susan, Phillipa is financially comfortable and does not argue that her mother’s moral duty to her was based on any financial need on her part. As Judith and Lynne have not taken part in the proceedings, they have not provided any information about their financial positions. However, Penelope has provided evidence about her financial position, and she asks me to take this into account in assessing the extent of her mother’s moral duty to her.
[56] Penelope is a retired teacher living in Orewa. She says that she has struggled financially since her husband, Michael, died 23 years ago.
[57] She has assets of around $1,007,000. These are made up of KiwiSaver ($300,000), BNZ savings ($160,000), a house ($540,000) and a car ($7,000).
[58] At present, Penelope has an annual regular income of $28,088, made up of superannuation ($19,448) and payments from a boarder ($8,640). This is insufficient to cover her budgeted annual expenditure, which totals around $33,000. The gap between her regular income and her estimated expenditure will increase if she loses the income from her boarder. She thinks this is a real possibility because the boarder is due to move out soon, and she is doubtful if she will be able to replace her.
[59] Currently, Penelope is able to supplement her regular income by relief teaching. If she works most days, she can earn an additional $3,000 to
$4,000 per month, but the work is erratic. Also, she is 69 years’ old and does not think that she can keep doing relief work much longer.
[60] While it is clear that Michael’s death put considerable financial pressure on Penelope, I do not see her as being in financial need. She has a mortgage-free home and significant savings. While her expenditure exceeds her regular income, that will generally be the case when a person retires. Also, the gap between the two is not large. Brenda treated Penelope the same as Phillipa, Judith and Lynne, so presumably she did not consider Penelope to be in financial need.
Incidence of any orders
[61] Both sides agree that any orders I make should not affect the legacies to the grandchildren.
[62] The plaintiffs’ position is that any orders I make in their favour should apply rateably to the whole of the residue of the estate.
[63] The defendants submit that, if I were to make orders in favour of the plaintiffs, this should not reduce their shares of the residue of the estate. Any reduction should be to Judith’s and Lynne’s shares of the residue of the estate.
[64] In my view, any orders I make should affect the whole of the residue of the estate. It is true that, while I have extensive evidence regarding the defendants’ very positive relationships with Brenda, I have little information about Judith’s and Lynne’s relationships with her. However, Brenda treated the defendants, Judith and Lynne the same under her will, and I do think I should disturb the equality as between them.
Conclusion
[65] I accept that Brenda was subject to incorrect factual beliefs and assumptions when she made her will and that this is something I should take into account when determining whether there has been a breach of moral duty and when fixing the award required to remedy any breach.
[66] I consider that this is a case where both the plaintiffs and Brenda must take some share of the blame for their estrangements. As I see Brenda as having some responsibility for the estrangements, this is not a case where the estrangements mean there cannot be a breach of moral duty. However, at the same time, whatever the reasons for their estrangements, I cannot ignore the fact that the plaintiffs’ relationships with Brenda were very limited.
[67] I accept that Cheryl is in financial need. Her need is exacerbated because of the assistance she needs to provide to Jennifer and her family to look after Charlie.
[68] However, importantly, I also consider that the size of the estate, and the fact that there are seven claimants to the funds (not including the grandchildren), means that it is not possible to simply consider the plaintiffs’ claims without also having regard to the competing moral claims of the other daughters, insofar as they are known.
[69] It is important that due recognition is given to the close and loving relationships that the defendants had with Brenda and to the considerable involvement they had in her life and the significant care and support they gave her.
[70] I do not consider Penelope to be in financial need. I therefore proceed on the basis that only Cheryl is in that category.
[71] Taking all these factors into consideration, my conclusion is that Brenda breached her moral duty to each of the plaintiffs and to remedy the breaches:
(a)the legacies to Helen and Susan should be increased from $10,000 to
$75,000 each; and
(b)the legacy to Cheryl should be increased from AUD 10,000 to
$300,000.
[72] I consider that the burden of the orders I make should be borne rateably by the whole of the residue of the estate.
Result
[73]I order that:
(a)the legacies to Helen and Susan are increased from NZD 10,000 to NZD 75,000 each;
(b)the legacy to Cheryl is increased from AUD 10,000 to NZD 300,000; and
(c)the burden of the increases in the legacies is to be borne rateably by the whole of the residue of the estate.
[74]If the parties cannot agree on costs, then I direct that:
(a)the plaintiffs file a memorandum of no more than three pages within 20 working days; and
(b)the defendants file a memorandum of no more than three pages within a further 10 working days.
[75]I will then determine costs on the papers.
Blanchard J
0