Monckton v Donald - [2025] NZHC 785

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
Plaintiffs

AND

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…

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 Monckton v Donald

Details

AGLC: Monckton v Donald [2025] NZHC 785
Case: [2025] NZHC 785
Decision Date: 4 April 2025

CaseChat Overview and Summary

In the case of Monckton v Donald, the plaintiffs, Helen Monckton, Cheryl Parker, and Susan Dassler, sought further provision from the estate of their late mother, Brenda Dassler, under Section 4 of the Family Protection Act 1955. The plaintiffs contended that Brenda's will, which made lesser provisions for them compared to their sisters, failed to adequately provide for their proper maintenance and support. The court was required to determine whether Brenda's will breached her moral duty to the plaintiffs and, if so, what provision should be made from her estate to remedy the breaches.

Blanchard J concluded that Brenda was subject to mistaken factual beliefs when she made her will, which should be considered when determining whether there had been a breach of moral duty. The judge also found that while both the plaintiffs and Brenda bore some responsibility for their estrangements, this did not preclude a breach of moral duty. Furthermore, the court accepted that Cheryl was in financial need, whereas Penelope, although financially comfortable, did not argue that her mother's moral duty to her was based on financial need. The size of the estate and the number of claims against it were also considered, with the court finding that it was necessary to have regard to the competing moral claims of the other daughters. Finally, the close and loving relationships that the defendants had with Brenda were taken into account.

Taking all these factors into consideration, Blanchard J concluded that Brenda breached her moral duty to each of the plaintiffs. The court ordered that the legacies to Helen and Susan be increased from NZD 10,000 to NZD 75,000 each, and the legacy to Cheryl be increased from AUD 10,000 to NZD 300,000. The burden of the increases in the legacies was to be borne rateably by the whole of the residue of the estate.

Orders