Moon v Public Trust - [2018] NZHC 1169

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-1640

[2018] NZHC 1169

UNDER Part 18 of the High Court Rules and the Family Protection Act 1955

IN THE MATTER

of the estate of MARY KATHLEEN DOYLE (deceased)

BETWEEN

STEVEN KENNETH MOON

Plaintiff

AND

AND

PUBLIC TRUST as Trustee and Executor of the Estate of Mary Kathleen Doyle

Defendant

PATRICK DAVID DOYLE

Interested Party

Hearing: 21-22 March 2018

Appearances:

S Callanan and K Mortimer for the Plaintiff C Martin for the Defendant

J Moss for the Interested Party

Judgment:

23 May 2018

JUDGMENT OF POWELL J

This judgment was delivered by me on 23 May 2018 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:Lewis Callanan, Auckland Public Trust, Auckland
Cashmere Law, Christchurch

Counsel: J Moss, Christchurch

MOON v PUBLIC TRUST & ANOR [2018] NZHC 1169 [23 May 2018]

[1] There is no dispute that Steven Moon (“Steven”) and Mary Doyle (“Mary”) had a relationship which lasted for some 27 years that ended only with Mary’s death, after a long battle with cancer, in January 2017.

[2] The nature of that relationship has been called into question after Mary bequeathed only her ashes to Steven. As a result Steven has sought “proper maintenance and support” from Mary’s estate. Specifically Steven has claimed the whole of Mary’s estate, apart from the specific items listed in the Schedule to this judgment, including the estate’s principal asset, Mary’s home in Fairview Avenue, near Albany, which was left to her older brother, Patrick Doyle (“Patrick”).

[3] Steven’s claim is made pursuant to s 4 of the Family Protection Act 1955 (“the Act”). This section provides:

4 Claims against estate of deceased person for maintenance

(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, order that any provision the Court thinks fit be made out of the deceased's estate for all or any of those persons.

[4] It is common ground that Steven is only eligible to apply under the Act if he was:

A de facto partner who was living in a de facto relationship with [Mary] at the date of … her death.¹

[5] Steven’s claim is opposed by Patrick. While Patrick acknowledges the longstanding relationship between Steven and Mary he:

(a)questions whether Mary would have regarded her relationship with Steven as being in the nature of a de facto relationship for the purposes of the Act; and

1 Family Protection Act 1955, s 3(1)(aa).

(b) argues there is otherwise no failure to make adequate provision for Steven…

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 Moon v Public Trust

Details

AGLC: Moon v Public Trust [2018] NZHC 1169
Case: [2018] NZHC 1169
Decision Date: 23 May 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Steven Kenneth Moon sought maintenance and support from the estate of Mary Kathleen Doyle, who passed away in January 2017. Mary had left only her ashes to Steven and the remainder of her estate to her brother, Patrick Doyle. Steven claimed the whole of Mary’s estate apart from the specific items listed in the Schedule to this judgment, including Mary’s home, under section 4 of the Family Protection Act 1955. Steven’s claim was opposed by Patrick who questioned whether Mary would have regarded her relationship with Steven as being in the nature of a de facto relationship for the purposes of the Act. The first issue to be determined by the Court was whether Steven and Mary’s relationship was a de facto relationship. The Court concluded that Steven and Mary were in a de facto relationship for the purposes of the Act. Steven’s claim was therefore entitled to proceed and the Court had to consider whether Mary failed to make adequate provision for Steven in her will and if so, how that was to be remedied. The Court concluded that Mary did fail to make adequate provision for Steven and awarded him $300,000 from her estate. The Court also directed the parties to reach an agreement on the household goods and personal effects left to Patrick and Anthony pursuant to Clause 4.7 of Mary’s will. If no agreement was reached, the Court would determine the issue after giving both parties the opportunity to file further submissions.

Orders