More v More

[2019] NZHC 2889

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CIV-2018-476-000048

[2019] NZHC 2889

BETWEEN

ELAINE ELINOR MORE

First Plaintiff

AND

KAREN SHEREE MORE, DAVID PHILIP MORE, SHANE ANDREW MORE and NADINE VANESSA LISTER

Second Plaintiffs

AND

ELAINE ELINOR MORE

Defendant

Hearing:	On the papers
Judgment:	7 November 2019

JUDGMENT OF NATION J

[1]    The parties engaged in these Family Protection Act 1955 proceedings have asked the Court to make orders to give effect to a settlement they have reached involving the estate of Philip James Thomas More.

[2]    Mr More died on 18 September 2016 aged 75. He was survived by his widow to whom he had been married for some 53 years, his four adult children and seven grandchildren.

[3]    At the time of his death, the deceased and Mrs More owned, in equal shares, a home and farmlet near Oamaru. It was recently valued at $2,180,500, plus GST if any. The estate’s half share would now be $1,090,250.

MORE v MORE [2019] NZHC 2889 [7 November 2019]

[4]    In his will, the deceased gave Mrs More a life interest in his half share of the Hilderthorpe home and farmlet. On Mrs More’s death, his share of the home and farmlet was to be sold and divided into four equal parts. One part was to be paid to the New Zealand Cancer Society, one part to the Jewish National Fund, and two parts were to be divided equally amongst his children.

[5]    The deceased’s grandchildren have not pursued any claim in the proceedings. Essentially, their interests have been furthered by their respective parents. Although served with the proceedings, the Jewish National Fund has taken no steps to resist the claim that has been made by Mrs More and the children of the deceased. The New Zealand Cancer Society had filed a statement of defence and has been actively involved in the proceeding.

[6]    Consistent with the settlement reached between the parties, the plaintiffs seek an order that Mrs More receive a 35 per cent share of the deceased’s interest in the estate’s half share of the Hilderthorpe property on the basis that the provision for her in the deceased’s will of just a life interest in his share of the property was in breach of the moral duty the deceased had to make provision for the proper maintenance and support of his widow.

[7]    It is apparent from Mrs More’s affidavit that the deceased, throughout his life, worked hard, initially through employment but also through buying land, building on it and enterprises such as growing tomatoes for Watties in Hawkes Bay, dairy farming near Maheno and Reidston, and farming beef cattle on the Hilderthorpe farm. In purchasing the farm at Hilderthorpe, the deceased was also in business as a builder. There were times of adversity with all this work and the work was hard. The deceased had significant health problems from 2003 which affected him physically, emotionally and mentally until his death in 2016.

[8]    In all of this, the deceased was supported by Mrs More. She had independent employment at crucial times. She raised their four children and ran the household. She cared for Mr More during his lengthy illness.

[9]    That rather bland summary does little to reflect what must have been the reality of a long and strong marriage, but a marriage with its challenges as well as the comforts, happiness and security it brought to the deceased, Mrs More and their family.

[10]   In these circumstances, I am satisfied that the deceased was in breach of the moral duty to provide for Mrs More in not making any provision for her to have a capital interest in his half share of the Hilderthorpe Road land.

[11]   Were the provisions of the will to remain as they are, but subject to Mrs More receiving a 35 per cent share of the estate, his four children would each be receiving only 8.125 per cent of the estate. The parties to the settlement recognise that all of the children were dutiful. There is no indication of disentitling conduct. They are agreed that, without an increase in the provision for them, there would be inadequate recognition of the deceased’s relationship with them and, through them, also his grandchildren. All parties to the proceedings however recognise that the deceased also wished to provide for the two charities and his wishes should prevail to avoid their being excluded altogether.

[12]   The parties have agreed that the residue in the deceased’s estate, after the provision for a 35 per cent capital interest to Mrs More, should be divided into nine equal parts to vest on Mrs More’s death with the four children each receiving two parts and the charities sharing equally in one part.

[13]   I accept the deceased was in breach of his moral duty to make adequate provision for Mrs More and his four children. I agree that the variations to his will, which have been agreed to by all parties, are an appropriate way of repairing those breaches of the duty which he owed to his wife and children.

[14]   I accordingly make an order that there be further provision under s 4 Family Protection Act 1955 from the estate of Philip James Thomas More for the plaintiffs by substituting clause 3 of the last will and testament of the deceased dated 6 October 2014 with the changes set out in the memorandum of counsel dated 21 October 2019.

[15]   There is no order as to costs. The plaintiffs and the Cancer Society are agreed that costs should lie where they fall and not be borne by the estate.

Solicitors:

Rhodes & Co., Christchurch

This judgment was delivered by me on 7 November 2019 at 4.00 pm Pursuant to Rule 11.5 of the High Court Rules

Registrar / Deputy Registrar Date: 7 November 2019