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Mumby v Mumby

Mumby v Mumby

Case [2016] NZHC 1284 14 June 2016

Family Protection Act

Wills & Succession

Family Law

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IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2014-488-000012 [2016] NZHC 1284

BETWEEN
NEIL ROBERT MUMBY AND CHERIE

KAREN CARNEGIE Plaintiffs

AND

BRETT JAMES MUMBY AND NEIL ROBERT MUMBY

First Defendants

BRETT JAMES MUMBY Second Defendant

Hearing: 7 - 11 March 2016

Appearances:

D A Wood and M E Cole for Plaintiffs
P J Magee and C Eglington for Defendants
N C King for Glenda Mumby

Judgment:

14 June 2016

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 14 June 2016 at 4.00 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………..

MUMBY v MUMBY [2016] NZHC 1284 [14 June 2016]

Table of Contents

Para No.

Introduction  [1]
Background
Cecil and Glennys  [5]
The children  [8] Brett returns to the farm  [17] Brett farms with his parents: 1999 – 2011  [23] Cecil’s death  [27] Glennys’ death  [29]

The wills
The 1999 will  [30]
The 2010 wills  [35]
The 2011 will  [38]
First cause of action: will invalid for want of knowledge and approval Proving knowledge and approval  [40] Did Glennys know and approve the contents of the 2011 will?  [49]
Second cause of action: undue influence  [54] Relevant principles  [55] General observations  [59] Neil’s exclusion from the residuary estate  [62] Brett inherits the farm and stock  [65] Bad behaviour: Brett’s reaction to Glennys smoking  [93] Bad behaviour: nagging Glennys to move out  [99] Bad behaviour: the stock moving incident  [102] A sense of entitlement to the farm  [104] Conclusion on undue influence  [109]

Family Protection claim
Relevant principles [110]
The value of the estate at the date of death [115] The moral claims on Glennys’ estate [120] Breach of duty? [129]

Summary of conclusions [133]
Costs [136]

Introduction

[1] Glennys Mumby and her late husband, Cecil, farmed at Taipa for 40 years.1

When Cecil died in 2011 Glennys inherited his share of the farm. When Glennys died in 2012 she left the farm to her son, Brett Mumby, who had farmed with his parents since 1998. The farm represented about 70 per cent of Glennys’ estate. She left a modest residential property (the Awanui property) to her other son, Neil Mumby, and divided the residue between her daughters, Glenda Mumby and Cherie Carnegie.

[2] Initially, the children accepted the provisions of Glennys’ will (the 2011 will) and probate was obtained in common form. Now, however, Neil and Cherie challenge the validity of the will. They assert that Glennys did not approve of the contents of her will or, if she did, the will was the result of undue influence by Brett. They seek a declaration that the will is invalid, an order recalling probate and an
order requiring the will to be approved in solemn form.2 Alternatively, if the 2011

will is valid Neil and Cherie seek further provision from Glennys’ estate under the

Family Protection Act 1955.

[3] Brett asserts that Glennys knew and approved the contents of the will and denies any undue influence over his…

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 Mumby v Mumby

Details

AGLC: Mumby v Mumby [2016] NZHC 1284
Case: [2016] NZHC 1284
Decision Date: 14 June 2016

CaseChat Overview and Summary

Neil and Cherie, the children of Cecil and Glennys Mumby, sought to have the will of their mother declared invalid on the basis that she lacked the requisite knowledge and approval of its contents or that it was procured by undue influence by their brother, Brett. Alternatively, they sought a Family Protection order to have the estate of their mother distributed more favourably to them. Brett, the third child of Cecil and Glennys, resisted the claims. Glennys’ fourth child, Glenda, who was content with the provisions of the will, was joined as an interested party. The plaintiffs sought a declaration that the 2011 will of Glennys was invalid or, alternatively, an order recalling probate and requiring the will to be approved in solemn form. They also sought an order under s 4(1) of the Family Protection Act 1955 for further provision from the estate of Glennys. Brett denied that the will was invalid or that it was procured by undue influence. He resisted the Family Protection claims. The plaintiffs submitted that the will was invalid because Glennys did not know and approve its contents. They argued that the differences between the 2010 and 2011 wills, particularly the exclusion of Neil from the residuary estate and the decision to leave the farm and stock to Brett, suggested that Glennys did not know and approve the contents of the 2011 will. They also submitted that Brett exerted undue influence over Glennys, particularly through his behaviour towards her. The plaintiffs submitted that the court should make an order under the Family Protection Act for further provision from the estate of Glennys to Neil and Cherie. Brett submitted that the plaintiffs had failed to prove that Glennys did not know and approve the contents of her 2011 will or that it was procured by undue influence. He argued that the plaintiffs had failed to prove that there had been a breach of moral duty to Neil or Cherie by Glennys. Justice Courtney held that Glennys knew and approved the contents of her 2011 will. The plaintiffs had not established undue influence by Brett. There was no basis for making a declaration that the will was invalid or for making an order recalling probate. The plaintiffs had failed to prove that there had been a breach of moral duty to Neil or Cherie by Glennys. However, the court found that Glennys breached her moral duty to provide proper maintenance and support to Neil. The court ordered that Neil was to be paid such sum from the residuary of the estate that, when coupled with the value of the Awanui property, represented one-third of the value of the estate excluding Brett’s legacy. Justice Courtney reserved costs, inviting counsel to address the issue in memoranda.

Orders