O'Dea v Johnson
[2024] NZHC 2917
•8 October 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-3072
[2024] NZHC 2917
IN THE MATTER of an appeal under the Family Protection Act 1955 from the Family Court at Manukau BETWEEN
MARY O’DEA and MICHAEL JOHNSON
Appellants
AND
JANE JOHNSON
Respondent
Hearing: 10 September 2024 Appearances:
G C Jenkin for the Appellants
S McCarthy KC for the Respondent
Judgment:
8 October 2024
JUDGMENT OF BLANCHARD J
This judgment was delivered by me on Tuesday, 8 October 2024 at 3.00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
Solicitors: Brannigans, Auckland
Wynyard Wood (C Reynolds), Auckland
Counsel: G C Jenkin, Auckland
S McCarthy KC, Auckland
O’DEA v JOHNSON [2024] NZHC 2917 [8 October 2024]
[1] Mary O’Dea and Michael Johnson appeal against a decision of Judge N A Walsh in the Family Court dated 27 November 2023.1 The decision relates to a claim under s 4(1) of the Family Protection Act 1955 (the Act) by their sister, Jane Johnson, against the estate of their mother, Anna Johnson.2
The family
[2]Anna died on 19 February 2021. Her husband, Peter Johnson, died in 2008.
[3] Their three children were born in consecutive years in the early 1960s. Mary was born in July 1960, Michael in November 1961, and Jane in November 1962.
The will
[4] Anna made her last will on 27 March 2018. She appointed Mary and her solicitor, Graham O’Brien, to be her executors. She gifted Mary all her jewellery. She gifted all her grandchildren except Jane’s children $50,000. She gifted AUD 10,000 to each of two friends. The residuary of her estate was gifted to Mary and Michael equally.
[5]Her will included the following provisions:
4.3I confirm that I have made gifts that might give my named grandchildren a greater share of my estate assets than has been given to my adult children. I wish to record that in the year 2015 to 2016, I have given both [Mary] and [Michael] sums of One hundred and forty thousand dollars as inter vivos gifts to assist them.
4.4I specifically direct my Trustees that I have excluded my daughter [Jane Johnson] of Pukekohe from any share of my estate on the grounds of her appalling and violent behaviour towards me and my late husband that saw her removed from our care as a teenager and her subsequent behavio[u]r and the fact that we have had no contact with each other for several decades. I do so acknowledging that I have had explained to me the provisions and implications of the Family Protection Act. I also exclude [Jane]’s children because of their gang associations and abuse of illegal drugs and the fact that there has been no appropriate family relationship with them either.
1 [Johnson] v [O’Dea] [2023] NZFC 13137.
2 Pseudonyms have been used instead of the parties’ real names. Where surnames are common, I will for convenience, and meaning no disrespect, refer to parties by their (pseudonymous) given names.
[6] A Will and Questionnaire completed by Mr O’Brien on behalf of Anna included the following:
PLEASE SET OUT ANY OTHER RELEVANT INFORMATION YOU THINK WE MIGHT NEED TO KNOW:
…
I wish to ensure my daughter, [Jane Johnson], receives nothing from my estate by reason of her appalling behaviour towards me and my husband when he was alive. No contact for 31 years.
[7] Anna also provided Mr O’Brien with three documents with an instruction that they were to be given to Jane and her children if she contested the will. The documents related to Jane’s history.
[8] The first document was a letter dated 30 July 1976 from the principal of Edgewater College to Peter. It recorded a conversation between Peter and the principal in which it was agreed Jane should transfer to another school. It said that Jane was “proving to be a very bad example to other pupils in the school” and that Jane transferring to another school would:
… give her the opportunity to have a fresh start and to eliminate the possibility of your two other children at Edgewater College from being affected by [Jane]’s attitude.
[9] The second document was a letter dated 9 November 1977 from the principal of Howick College to both Peter and Anna. The letter advised that the principal was:
… very concerned that on several occasions recently it has been necessary to remove [Jane] from class and require her to work under supervision in the withdrawal room.
It added that this was:
… a very serious step for us to take and usually occurs only when the student involved is disruptive, and preventing those who are genuinely doing their best with getting on with their work.
The letter concluded that if Jane’s “behaviour continues to be unsatisfactory, I will have no alternative other than to remove her from class for a longer period”.
[10] The final document was a summons to appear before the Children and Young Persons Court dated 30 December 1977. The summons was addressed to Peter. It stated that Jane was a:
… child (or young person) who is in need of care, protection, or control in that
… she has consistently been running away from home and refuses to live at home with her parents.
The residuary
[11] Jane’s children also made claims under the Act. However, these claims were settled on the basis that each would receive a payment of $50,000 from the estate.
[12] At the Family Court hearing, the Judge was advised that, after all the gifts and Jane’s children’s claims were paid out, there was $870,230, in the estate’s solicitors’ trust account.
Jane’s early childhood
[13] Jane, on the one hand, and Mary and Michael, on the other, have very different perspectives on Jane’s childhood and her relationship with Anna. The summary that follows is largely taken from Jane’s evidence, which the Judge preferred. I indicate where there are significant differences between her version of events and that of Mary and Michael.
[14] Jane said that Anna never showed any of them any affection. Anna also told Jane constantly that she was unwanted. Jane said that when she was home alone with Anna between the ages of four and five, she felt frightened of her.
[15] In contrast, Jane adored Peter. He showed love and affection to Jane and her siblings. He did his best to keep everyone in the family happy.
[16] Jane also said Anna and Peter argued a lot. She said this often resulted in Anna leaving the family home for days or weeks at a time.
[17] Because of the tension between her parents and the way her mother treated her, Jane began to run away from home at an early age. She first ran away when she was five-and-a-half years old. She ran away four times that she could recall.
[18] Mary disputed Jane’s evidence about these matters. She did not agree that Anna told Jane she was unwanted or rejected her. She did not accept that Jane ran away in this period. Mary said the issues between Jane and Anna arose later because of Jane’s appalling behaviour at home and school as a teenager. As a child, Mary said Jane was treated no differently from the way that she and Michael were treated.
Jane’s teenage years
[19] Later, when Jane was attending Pakuranga Intermediate School, Anna began telling her that she was going to kick Jane out of the home the day she turned 15. Jane said that she lived under this threat of Anna’s for the next few years.
[20] Michael said that he does not know whether Anna ever said to Jane that she was going to kick her out of the house when she turned 15, but he doubts she did.
[21] Jane also said that at this time her parents’ marriage was not at all happy. They fought and argued and threw things at each other.
[22] Jane referred to an incident in April 1976. It was “mufti day” at Edgewater College. Anna would not let her wear non-uniform clothes. Peter took Jane to school in her uniform. Jane was angry at Peter for not standing up to Anna. She ran to the school nurse’s office and refused to come out. Peter did his best to console her, but had to leave to go to work. The school called Anna. She came to the school but Jane refused to go with her. At this point the police were called. The police handcuffed Jane to a rail in a police car so she could be sedated and transported to a children’s psychiatric ward at Auckland Hospital. Jane was 13 years old and terrified.
[23] Jane obtained the medical records at Starship relating to this incident. They showed that she was in hospital for about three weeks. While she was at hospital, she ran away several times to Peter’s office at work. The doctors sedated her to stop her from running away.
[24] They had family counselling sessions. Anna told Jane that she did not want her back at home. In the end, it was decided that Jane would return home. But, the arguments between Anna and Peter continued. So did the arguments between Anna and Jane.
[25] Jane said that after this incident she was treated differently by the teachers at Edgewater College. Kids made fun of her. One of her teachers yelled at her one day, saying nasty things at her, and threw a duster at her, which hit her on the head. She reacted by picking up her chair and throwing it at him. As a result, she was sent to the principal’s office.
[26] It was because of this incident that the principal of Edgewater College wrote the 30 July 1976 letter to Peter. As discussed above, the letter refers to Peter agreeing that Jane would be transferred to another school.
[27] Jane said that she then went to Howick College from mid-1976. She was 13- and-a-half years old. She said that she was very happy there and made new friends. No one knew about her being in a psychiatric ward or why she left Edgewater College.
[28] However, family life was still strained. As her 15th birthday approached in November 1977, Jane became extremely anxious about Anna’s continued threats to throw her out of the house. Nothing happened on her birthday, but Jane was very anxious by this time.
[29] Jane could not concentrate on her schoolwork and was not doing her homework. She was falling asleep in class. She got several detentions because of this and for talking back to teachers, who did not believe her when she said she was having problems concentrating on her schoolwork because of what was happening at home with her mother.
[30] Jane says that this was what was behind the principal of Howick College’s letter to her parents of 9 November 1977. As mentioned above, this referred to Jane being removed from the classroom and working under supervision.
[31] This was the background to an incident on Christmas Day 1977. During Christmas lunch, Jane told Anna “what [she] thought of her”. She then abruptly left the table and ran and hid in a local church. She returned home later in the evening.
[32] Mary has a different recollection of this incident. Her evidence was that Jane upturned the fully laden Christmas table and physically attacked Anna. Jane denied this was the case. She said she merely pushed her meal aside, pushed the table and ran past Anna and out of the house.
[33] Several days later Jane ran away again after another argument with Anna. She was sick and tired of living under Anna’s threats of kicking her out of the home. The police picked her up and took her to Howick Police Station. Peter was called, but Jane refused to go home. She was then taken to Bollard Girls’ Home.
[34] Peter received the summons to appear before the Children and Young Persons Court dated 30 December 1977 as a result of Jane repeatedly running away from home and refusing to return. This ultimately resulted in Anna and Peter agreeing to Jane going into the custody of the Department of Social Welfare on 3 March 1978. On 28 April 1978, an order was made by the Court placing Jane under the guardianship of the Director-General of the Department.
[35] Mary had a very different view of these events. She said Jane’s behaviour when she was at school was appalling. Even as a 12-year-old at Edgewater College Jane was totally disobedient, refusing to submit to her parents’ discipline. She was constantly abusive and at times violent and belligerent towards both her parents. She refused to obey the rules at school, threw tantrums when she did not get her own way, and was constantly running away and getting into trouble.
[36] She would play Anna off against Peter. She would divide and conquer and bait Anna and delight in her reaction. When she caused division between her parents she would boast about it. Mary says the disharmony that Jane caused in their family when she was at school cannot be overestimated. Her behaviour drove a wedge between her parents and it amazes Mary that they managed to stay together.
[37] In contrast, the relationship that Anna and Peter had with Mary and Michael, although not perfect, was normal. They enjoyed a loving relationship. When Jane was not there, home life became calm and peaceful. There was no yelling and screaming, no upturning of tables, no threatening and intimidating behaviour and no violence. She and Michael lived at home with their parents until they were about 19.
[38] Michael’s evidence was that the problem was Jane never respected the rules, whereas Mary and he did. Her misconduct at school was much the same as her misconduct at home. He does recall Jane constantly arguing with Anna over all manner of things. He said that whatever trauma was suffered by Jane was entirely brought upon herself by her own disobedience and inappropriate behaviour.
[39] Carrying on the story, Jane was transferred from Bollard Girls’ Home to Allendale Girls’ Home. She was then fostered by one of the teachers at the girls’ home and her husband. She went to live with them in Ranui and went to school at Henderson High. Jane says that she was abused while in foster care.
[40] Peter’s twin brother and his wife lived in Henderson. Peter’s brother asked Peter and Social Welfare if Jane could live with them. However, Anna refused to give permission for Jane to live with Peter’s brother and his family.
[41] The teacher who fostered Jane from Allendale Girls’ Home was transferred to a girls’ home near Wellington. Jane did not go with the teacher and her family. This meant that she had to leave the school and find a job.
[42] In December 1978 Jane was admitted to hospital. Peter and Mary visited her and asked her to come home, but she refused.
[43] In January 1979, Jane had a holiday in Tauranga with Peter’s only sister. While she was there, Peter’s sister spoke to him about Jane moving to Tauranga to live with her. Anna rang Social Welfare to advise that Jane was not allowed to live with Peter’s sister.
[44] Until Mary got married in 1980, Jane had little contact with her family except for Peter. She had weekly contact with Peter, mostly telephone calls and occasional visits to her flat.
[45] Jane said that, even though her mother rejected her, she had a close and loving relationship with her father. This continued right through to the time he died in October 2008. Whatever Anna did, Peter did his best to stay in contact with her and she did her best to stay in contact with him.
[46] A couple of months before Mary’s wedding, Anna went to Jane’s workplace. She wanted to talk to Jane about Mary’s wedding. Jane said she was shocked because Anna was “quite nice” to her. Anna wanted Jane to attend Mary’s wedding. She said that she and Peter really wanted Jane to be there.
[47] At Mary’s wedding, Anna approached Jane and said that Peter was upset and wanted her to go home and live with them. Jane agreed to return home.
[48] Mary says that Jane behaved appallingly at her wedding. She openly and loudly disparaged Anna to many of the other guests, causing major upset.
[49] On 27 May 1981, the Department of Social Welfare wrote a report recommending that Jane be discharged from guardianship. That occurred on 4 June 1981. Jane was aged 19 years and seven months.
[50] Jane started going out with one of her brother Michael’s friends. She became pregnant with her son. When Jane told Anna and Peter, Anna asked her to leave.
[51] Jane’s son was born in August 1982. Peter visited her in hospital. No one else from the family visited.
[52] When Jane’s son was about six months old, his father was violent towards Jane several times. On the last occasion, Jane went with her son to her parents’ place. It was late at night, and she needed somewhere to stay.
[53] When she arrived only Peter and Michael were there. Anna was not at the house. When Anna returned the next day, she told Jane to leave and to not ever bring her son back to the house. Jane says she has a clear recollection of Anna making a derogatory comment about her son.
[54] Mary has a different take on this. She says that the problem was that initially Jane told Peter that she was pregnant but insisted that he not tell Anna. When Jane’s son was born and Anna found out she felt betrayed by her husband and there was a major falling out between Anna and Peter.
Jane’s twenties
[55] Jane saw little of Anna in her twenties. In contrast, she and her son saw Peter regularly. He was a great support to Jane whenever she needed help.
[56] On Christmas Day 1987, when her son was five, Jane went to Anna and Peter’s house. She turned up unannounced. Peter was delighted, but Anna was the opposite. She told Jane’s son not to call her Grandma Anna.
[57] Jane had no contact with Anna after that until Anna’s 50th birthday in October 1989. She was still in regular contact with Peter though. Peter took Anna and Jane out for dinner to celebrate the 50th.
[58] In 1990 Jane met her first husband. They married in February 1991. Both her parents and her siblings were at the wedding.
[59] Mary says that Jane’s behaviour in relation to preparation for her wedding caused major upset. She and Jane disagree about what occurred. Mary also disputes that her parents attended the wedding.
[60] Jane became pregnant. During the pregnancy she had several lengthy admissions in hospital. Peter visited her. Anna did not. Jane’s daughter was born in 1992.
[61] Jane was in regular contact with Peter and she visited him and Anna at their home. They also visited Jane at her home. Apart from those visits Jane had no contact with Anna.
[62] Peter had a lot of contact with both Jane’s children. Anna had little or none. Mary said that in contrast, Anna had a normal relationship with her children and Michael’s.
The gun incident
[63] Mary and Michael place particular reliance on what they referred to as the “gun incident” as justifying Anna’s exclusion of Jane as a beneficiary under the will.
[64]The incident occurred in around July 1993. By this time Jane was 30.
[65] The context was that Anna and Peter had decided to relocate to the Gold Coast in Queensland. Anna had gathered up all of Jane’s personal items that remained in the family home and Peter delivered them to Jane’s house.
[66] Shortly after this, Jane went to Anna and Peter’s house. Mary and Michael were not there but their evidence was that Jane arrived with a gun. She pointed the gun at Peter and screamed at him, “this will be another Schlaffer murder.” They said this was a reference to the Schlaffer killings near Pukekohe. In Mary and Michael’s telling, Anna was there at the time and was terrified. She hid in a wardrobe while Jane threw the returned possessions across the front lawn causing a terrible commotion involving the neighbours.
[67] Mary and Michael’s position was that Anna never wanted to see or speak to Jane again after this incident and she never did except for one time in 2019 when Jane visited Anna unannounced when she was in a rest home.
[68] Jane’s version of events is quite different. She said that when Peter delivered the personal items to her at her house, she asked why he was giving her the items. He said that they were leaving New Zealand in a few days. Her evidence was that this was the first time that she heard her parents were leaving New Zealand.
[69] She was sad that she had not been told about this earlier. She was angry and stressed. She got into an argument with Peter about how she was always left out of family matters. She was very hurt and started yelling about the past. She told Peter that he always listened to Anna and now Anna was taking Peter away from her.
[70] She picked up all the things that Peter had dropped off and threw them in the back of her car. She decided she would tell Anna and Peter what she thought of them. She thought that Anna probably was not going to listen to her so, “not thinking clearly at the time”, she put her husband’s old broken unloaded shotgun in the boot of the car.
[71] When she arrived at Anna and Peter’s place, Peter invited her in. Anna was not there. Jane returned to her car and started putting all the items that Peter had dropped off to her on the ground. He was angry at her for doing this.
[72] Jane told Peter that she wanted Anna to hear how hurt she was about being left out again. Peter said that Anna did not want to see her. Jane said that she would wait for Anna to come home, and she would make Anna listen to her. Peter asked her how she was going to do that, and she said she had a gun in the boot of the car. He told her to open the boot of the car and he grabbed the gun, ran up the driveway and put it into the garage and locked the garage door.
[73] Peter told her to leave. She stayed a while, continuing to be very upset and crying uncontrollably. After she calmed down, she drove home.
[74] The police were contacted. They visited Jane to discuss the incident with her but the matter went no further.
Subsequent years
[75] Jane only saw Anna once after they left New Zealand. As mentioned, this was in 2019 when she visited Anna unannounced at her rest home.
[76] In contrast, Jane and Peter were in regular contact by telephone, email, letters, faxes, and birthday and Christmas cards. They also enjoyed brief visits when he was back in New Zealand.
[77] If Jane called to speak to Peter and Anna answered, Anna would either yell at her and then hang up or she would just hang up. Jane and Peter had to make special arrangements to avoid this happening.
[78] Some of Peter’s written communications to Jane and her children are in evidence. These are consistent with Jane and her children having the loving and close relationship with Peter that she described.
[79] In 2001, Jane, her then husband and her daughter had a three-week holiday on the Gold Coast. Jane’s daughter had her 9th birthday when they were there. Anna knew they were on holiday because Peter told her, but Anna refused to see them.
[80] In early 2008, Jane’s daughter was in Sydney doing a six-month Rotary student exchange. Peter made arrangements to visit her. There was no contact from Anna.
[81] On 21 October 2008, Mary telephoned Jane and said that Peter was going to die and arrangements were being made for them to fly over to see him. Jane flew to Australia and saw Peter three times before he died.
[82] She did not see Anna while she was in Australia. Anna arranged her visits to see Peter at different times.
[83] Michael said that he and Mary shared the cost of Jane’s airfare to Australia and she was not particularly grateful.
[84] Mary and Michael say that when she was in Australia, Jane said that Peter had been having a long affair with a woman in New Zealand. They say that the manner in which Jane divulged this information was malicious and specifically designed to put unnecessary pressure on Anna. However, as Jane points out, she had no contact with Anna. She therefore did not divulge the information to Anna and could not have pressured her.
[85] During one of Jane’s visits to see Peter they talked about Anna. Jane asked Peter if it was a good idea to send Anna some flowers. He agreed she should. He also
said he hoped one day they would reconcile. He suggested Jane should wait seven or eight years because it would take time for Anna to come around.
[86] On 30 October 2008, Mary telephoned Jane to say that Peter had died. When Jane asked her what would happen next, Mary said there was going to be a private service and Anna did not want Jane there. Jane said she will never get over the grief and sorrow of not being able to attend her father’s funeral.
[87] Peter’s will is not in evidence. But it appears that all his estate went to Anna. A copy of her will from this time is in evidence. This shows that all of her estate was to go to Peter and there is an email suggesting that Peter’s will was a mirror of Anna’s.
[88] After Peter’s death, Anna fell sick. She demanded that Mary drop everything and go to Australia to be with her, which she did.
[89] In October 2014, Anna returned to New Zealand. She made sure that Mary visited her every weekend. Mary said that Anna’s demands on her took a huge toll on her health.
[90] Mary said she was close to her mother, although she could be difficult at times. She expected a lot from Mary and when Anna fell sick it was Mary that looked after her. She said Anna could be quite petulant. If she did not get the attention she wanted she would misbehave. She was known to make false 111 calls and to scream at the top of her lungs if she wanted something. Sometimes Mary was forced to cancel work trips because of Anna’s demands. This affected their relationship. She said that it would be wrong to say that relations between them were perfect. However, over the years she learned to manage the situation.
[91] Michael’s evidence about these matters was similar. He said that Mary made huge sacrifices and, like Mary, he visited Anna regularly. He said that Anna never made visits to see her enjoyable. Whenever he did, Anna “took out life’s frustrations” upon him. She needed a lot of care and Mary and he were there to give that support. Anna’s telephone calls came at all hours and when she rang she demanded that
Michael visit. Often, if he complied with her demands, for some peculiar reason she would not engage once he arrived. Her behaviour could be quite irrational.
[92] In May 2015, Jane went to the Gold Coast to visit Peter’s grave. She went to try to see Anna and discovered that Anna had returned to New Zealand the previous year.
[93] Jane sat on that knowledge for a while. Then, in 2016, she let Mary know she wanted to go and see Anna and asked for her help.
[94] A few days later she sent a note to Mary asking her to pass on a small parcel to Anna from her. The parcel contained a photo she had created that combined baby photos of Jane and her daughter and granddaughter. There was also a card for Anna with an update on her life.
[95]On 6 May 2016 Mary sent Jane a very revealing email in response which said:
Whilst it is a nice gesture don’t expect anything back from her in regards to acknowledgement. [Anna] is only capable of feelings for herself and nobody else.
I don[’]t intend seeing her for mothers day she doesn’t deserve it and she reaps what she has sowed. Once I have given it to her I will let you know her reaction but as I say don[’]t expect anything. My advice to you is don’t invest any emotions or feelings and we have all learnt to do exactly that. None of my boys see or visit her or even acknowledge her and you don’t have to worry that you are missing anything.
[96] When Jane and Mary met in person Mary said that Anna did not want to see or hear from Jane. Mary returned the photo to Jane.
[97]On 10 October 2017 Mary sent another revealing email to Jane:
No I didn’t go up for her Birthday couldn’t be bothered and I was in Christchurch. Went up on Sunday but just more self pity, crying and pathetic behaviour. I wouldn’t ask her for any forgiveness she may be stuffed body wise but her mind is sharp, she is manipulating (nurses have finally seen through it all) and in her mind she believes she is still right about everything.
I won’t ask her but will give you some details and you can determine if you want to take the chance and visit her but be aware there will be theatrics and she will push her buzzer for nurses and then perform. Amazing she can’t talk but when she wants something it is a right show, tantrums, wailing and tears.
I don’t show any emotion, or ask her what[’]s wrong just sit there and wait for her to finish and then usually go.
At the end of the day she has chosen her life…
[98] On 19 May 2019 Jane arranged to visit Anna at her rest home. This was the first time they had seen each other since 1993. Jane was excited and scared about what Anna’s reaction would be. But they were together for about two-and-a-half hours. Anna was only able to mumble but they cried and hugged. Jane showed Anna photos and told her about her family.
[99] Mary said that Anna told her that she did not enjoy Jane’s visit at all. She was concerned about Jane’s unpredictable behaviour, and quite worried about her own safety.
[100] In August 2019 Jane sent Mary an email to ask if she was planning anything for Anna’s 80th birthday. By email dated 31 August 2019, Mary said that she was “not doing anything, what[’]s the point – it will just be a self misery party”.
[101] Mary, however, said that she did mark Anna’s 80th birthday. Three days before the birthday she picked up Anna’s brother and the two of them visited Anna and had a reasonably pleasant lunch.
[102] Jane talked with Mary about going to see Anna again, together with her children. Mary talked her out of it. She said it was not worth it.
[103] As I have already said, Anna died on 19 February 2021. Mary pointed out that when Anna passed away she had not seen Jane for over 28 years, except for the time Jane visited her in the rest home in 2019. She said that, although Anna could be difficult at times, and she experienced her bad behaviour a lot, she cannot accept that Anna was more to blame than Jane for their estrangement. Jane’s behaviour when she was at school was appalling. However, as she progressed into adulthood there was no change in her behaviour. In fact, it got worse. She said one could perhaps understand a disaffected schoolgirl, but not a disaffected woman in her 40s and older. Mary did not like the way that Jane treated Anna. From her mother’s point of view Jane’s behaviour was unforgivable.
[104] Michael agrees with Mary that the estrangement was largely caused by Jane. Anna could be a difficult person, but she did make efforts to reconcile. However, the gun incident put the relationship beyond repair. Anna had had enough of Jane and did not want to see her again after that.
Claims under s 4(1) of the Act
[105] Under s 4(1) 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.
[106] 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.3
[107] An application can be based on economic considerations or moral and ethical ones.4 In many cases it will involve a “compendious inquiry” into both these considerations.5
[108] However, there could be a moral obligation to make provision for an applicant who is situated comfortably financially. This could, for example, be because of the need to recognise the place that the applicant had in the deceased’s family.6
[109] The size of the estate and any other competing moral claims are highly relevant.7 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 claimants.8
3 Little v Angus [1981] 1 NZLR 126 (CA) at 127.
4 Williams v Aucutt [2000] 2 NZLR 479 (CA) at [38]–[39], [52], [60]–[64] and [69].
5 Auckland City Mission v Brown [2002] 2 NZLR 650 (CA) at [34]–[35].
6 Williams v Aucutt, above n 4, at [52] and [69].
7 Little v Angus, above n 3, at 127.
8 Williams v Aucutt, above n 4, at [40].
[110] Mere unfairness is insufficient.9 So too is mere disparity in the treatment of beneficiaries.10 There is no presumption of equal sharing between children.11
[111] 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.12
[112] The Court is not required to have regard to the testator’s reasons for making the provisions in the will, but it may have regard to them.13 Where the testator has shown reasoned and just intentions and wishes, the Court ought to take those into consideration because, in the ordinary circumstances, the testator is likely to have a valuable opinion as to what is proper maintenance and support. However, if a testator has deliberately and wrongly omitted to make provision, his or her intentions and wishes can carry no weight.14
[113] 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.15 However, this does not mean that when there has been an estrangement between a parent and a child 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.16 Further, there are numerous cases involving testators who have neglected or mistreated their children.17 In these cases,
9 Re Leonard [1985] 2 NZLR 88 (CA) at 92; Williams v Aucutt, above n 4, at [68] and [70]; Auckland City Mission v Brown, above n 5, at [33]; and Henry v Henry [2007] NZCA 42, [2007] NZFLR 640 at [55].
10 Williams v Aucutt, above n 4, at [50] and [51].
11 Barnard v Robertson [2023] NZCA 230, [2023] NZFLR 103 at [48]–[49].
12 Williams v Aucutt, above n 4, at [70]; Auckland City Mission v Brown, above n 5, at [36]; and
Henry v Henry, above n 9, at [54]–[55].
13 Family Protection Act 1955, s 11.
14 Re Crewe (Deceased), Crewe v Corbett [1955] NZLR 210 (SC) at 212–214.
15 Flathaug v Weaver [2003] NZFLR 730 (CA) at [32].
16 Moon v Carlin HC Auckland, CIV-2010-404-5486, 23 February 2011 at [28]–[29].
17 Kinney v Pardington [2019] NZHC 317; Ormsby v Van Seln [2015] NZHC 2822; Re Frankland (deceased), Shannon v Bowering HC Rotorua CP33/97, 21 August 2000; Rothnie v Public Trust Office HC Wellington CP203/95, 22 September 1997; Re Upton HC Wellington CP169/94, 28 September 1995; Re A (1988) 4 FRNZ 668 (HC); and Re Galletly [1946] 48 GLR 417 (SC).
the Court can do what ought to have been done in the will to address what the testator failed to do, or did, in his or her lifetime.18
Approach on appeal
[114] In a much-cited passage in Little v Angus, the Court of Appeal said that an appellate court will not substitute its decision for that of the judge at first instance unless there be made out some reasonably plain ground upon which the order should be varied.19
[115] In Talbot v Talbot, the Court of Appeal suggested a more nuanced approach.20 Whether or not there has been a breach of the moral duty set out in s 4 of the Act is a threshold issue, turning on matters of law, fact and degree.21 Appeals involving this threshold issue fall to be determined by reference to the approach set out in Austin, Nichols & Co Inc v Stichting Lodestar.22 If there is a breach of moral duty found, then what remedy should be granted is an issue involving the exercise of a discretion. An appellate court will only intervene if there has been an error of law or principle, if the judge below took into account an irrelevant consideration or failed to take account of a relevant consideration, or if the decision below is plainly wrong.23
[116] However, subsequently in Brown v Brown the Court of Appeal said they doubted that what was said in Talbot v Talbot effected any substantive change to the traditional, flexible standard of appellate review.24 In many cases the existence and extent of the moral duty will be the decisive consideration, but an appellate court will not intervene in an evaluative decision unless persuaded that the court below was wrong, and that onus is frequently difficult to discharge.25
18 Moon v Carlin, above n 16, at [30]–[32] quoting: Bosch v Perpetual Trustee Co Ltd [1938] AC 463 (PC) at 478–479; Williams v Aucutt, above n 4, at [38]; and Crosswell v Jenkins and Hall- Jones (1985) 3 NZFLR 570 (HC) at 575.
19 Little v Angus, above n 3, at 127; and Fisher v Kirby [2012] NZCA 310, [2013] NZFLR 463 at [124].
20 Talbot v Talbot [2017] NZCA 507, [2018] NZFLR 128.
21 At [37].
22 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
23 Talbot v Talbot, above n 20, at [37] citing: Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].
24 Brown v Brown [2022] NZCA 476 at [65].
25 At [65]. See also Barnard v Robertson, above n 11, at [30].
The Family Court decision
[117] The Judge treated the claim as one based on moral and ethical considerations, rather than economic ones. This was because, although there was evidence about financial issues Jane faced, Mr McCarthy KC conceded that a claim based on economic considerations was never regarded as a “strong platform” for Jane’s claim. He had submitted that the main platform for the claim was Anna’s responsibility for the estrangement with Jane and her “utter failure to repair” that estrangement.26
[118] The Judge found unequivocally that Anna’s reasons for excluding Jane were not valid.27
[119] He concluded that it was misleading for Anna to say that Jane was “removed” from Peter’s and her care as a teenager due to her “appalling and violent behaviour towards” them.28
[120] He found that Anna and Peter had a “dysfunctional relationship” which had “adversely impacted on [Jane] throughout her childhood”.29 The Judge placed reliance on a report by a psychologist from the Department of Education, Mr TA Guild. The Judge considered that the report dated 2 March 1978 showed that it was Anna and Peter’s dysfunctional relationship that was the main cause of the tension between them and Jane, which had led to Jane consistently running away from home and refusing to live with her parents.30
[121] The Judge preferred Jane’s version of what occurred on Christmas Day in 1977. He considered that this was a case of “another family saga [that had] become distorted in its retelling with the passage of time over 45 years”.31
[122] The Judge also preferred Jane’s version of events in relation to the gun incident.32 He concluded that Anna was not present during the incident, that Jane did
26 [Johnson] v [O’Dea], above n 1, at [236].
27 At [254].
28 At [50] and [252].
29 At [50].
30 At [41]–[44], [50], [254]–[256] and [262].
31 At [198].
32 At [184].
not point the gun at Peter, and that the gun was unloaded.33 He rejected the evidence that Jane screamed, “this will be another Schlaffer murder”.34 He considered that with the passage of time, the story of the “‘gun incident’ has become the genesis for an event which has taken on a life of its own in its retelling”.35 Mary and Michael’s evidence was exaggerated and incorrect.36 He noted that if the gun incident was such a significant event it was surprising that there was no reference to it in cl 4.4 of the will or in Mr O’Brien’s notes.37
[123] The Judge also found that there was a “complete paucity” of any detail about the alleged violent behaviour by Jane towards her parents.38 He considered that the only independent evidence of violent conduct was found in Mr Guild’s report which referred to “many instances of physical expressions of anger”.39 However, the Judge inferred that the physical expressions of anger were from Jane’s parents rather than from her.40
[124] The Judge found that Anna had an inflexible attitude towards Jane as a teenager.41 He found it “very revealing” that Mary had said to Jane in her email of 10 October 2017 that in Anna’s “mind she believes she is still right about everything”.42
[125] He found that Anna failed to acknowledge or understand that Jane’s behaviour as a teenager was a reaction to the situation at home, in particular her parents’ dysfunctional relationship and Anna’s inflexible attitude towards her.43 He accepted Jane’s evidence that she felt rejected by her mother from when she was a child.44 He considered that Anna and Peter had failed to meet her emerging needs as an adolescent, and that this was a fundamental failure.45
33 At [185].
34 At [186].
35 At [189].
36 At [193] and [268]–[271].
37 At [271].
38 At [195].
39 At [199].
40 At [200].
41 At [257].
42 At [258].
43 At [257].
44 At [263].
45 At [264]–[267].
[126] The Judge accepted that Peter appeared to be critical of Jane at the time of the summons to the Children and Young Persons Court. But, he found that despite that and the gun incident, the relationship between Jane and her father was loving and close through to his death.46
[127] It followed from the above that the Judge did not accept Mary and Michael’s position that Jane was mostly responsible for the breakdown in the relationship between Jane and her mother.47
[128] Having made the above findings, the Judge concluded that Anna breached her moral duty to Jane when she excluded her from the will. Anna was neither a wise nor a just testator.48 Her treatment of Jane by entirely excluding her as a beneficiary, and thereby failing to recognise her as a member of the Johnson family, was completely unjust and immoral.49 Accordingly, he accepted Jane’s claim.
[129]The Judge then turned to the question of remedy.
[130] He rejected a submission that the $50,000 payments received by Jane’s children under their settlements were relevant to the remedy Jane should receive because she benefitted from them indirectly.50 He also said that the competing claims of Mary and Michael were not relevant because provision was made for them in Anna’s will.51 However, he agreed with Mr Jenkin’s description of the estate as “not large”.52
[131] He said that the remedy must factor the scale of Anna’s breach and the extent to which she was responsible for the estrangement.53
46 At [272]–[273].
47 At [268].
48 At [275].
49 At [275].
50 At [280].
51 At [282].
52 At [281] and [283].
53 At [284].
[132] He said that Anna had actively brought about the estrangement with Jane.54 He accepted Jane’s evidence that at the ages of four and five she had felt frightened of her mother and that her mother had physically disciplined her.55 He reiterated that he had not found any evidence that Jane had been physically violent towards her parents.56 He referred again to his earlier findings regarding Mr Guild’s report.57 He accepted Jane was a rebellious and challenging child and adolescent,58 but he concluded that Anna was primarily responsible for causing the mother/daughter relationship to unravel when Jane was only five to six years old.59 He did not accept that Jane was primarily responsible as Anna was the adult and Jane was the child.60
[133] He went on to find that Anna perpetuated the estrangement right until her death.61 He considered it was Anna’s personality, nature and mindset to perpetuate the estrangement with Jane.62 He referred here to Mary’s evidence that her mother was “quite petulant at times” and “could be difficult” and the evidence of Anna’s brother that she was “head strong”.63
[134] The Judge referred to two matters in particular. The first was Anna’s refusal to agree to Jane living with her uncle and aunt in 1978 after she was placed at Allendale Girls’ Home, and her refusal to allow Jane to live with her aunt in Tauranga.64 He described this as “telling evidence of [Anna]’s unbending and uncompromising position”.65 He also noted that these were critical times in Jane’s life. Anna was prepared to take the risk of her 15-year-old daughter being cared for by “strangers” in foster care or in state institutions rather than by members of the extended family.66 He said that this reflected Anna’s “unyielding character which was not responsibly child focused”.67
54 At [285].
55 At [286].
56 At [286].
57 At [287]–[292].
58 At [302].
59 At [302].
60 At [302].
61 At [302].
62 At [295].
63 At [295].
64 At [298].
65 At [298].
66 At [299].
67 At [299].
[135] The second matter the Judge referred to was when Jane, aged 20, fled to her parents’ home for urgent support when her son was six months old after she had been the victim of family violence. He accepted Jane’s evidence that when Anna returned home, she directed Jane to leave and made a derogatory comment about Jane’s son. The Judge described this as “the most striking illustration of [Anna]’s lack of insight or compassion towards Jane”.68
[136] The Judge also considered that Anna had a “grand opportunity to reach out” to Jane in 2008 when Jane travelled to Australia to visit her dying father in hospital. He noted that it was Mary’s evidence that, even then, Anna wanted nothing to do with Jane. She must have been aware of the ongoing relationship between father and daughter yet she “wantonly and deliberately” excluded Jane from her father’s funeral, a significant event in the Johnson family.69
[137] The Judge’s overall conclusion was that in excluding Jane as a beneficiary she had “displayed a rigid and inflexible view” and a “misconstrued and flawed perception of historic[al] events”. Her decision to exclude Jane was therefore neither wise nor just.70
[138] Mary and Michael conceded that Jane had a valid claim based on moral and ethical considerations, but they did not agree to an award of any more than 10 per cent. They submitted that anything more would be unjustified.71 However, the Judge rejected this as “woefully inadequate” to remedy Anna’s breach of moral duty in all the circumstances of the case, “bearing in mind the low size of the estate” and the need to fairly recognise Jane’s place in the family.72
[139] The Judge said that he did consider sharing the estate equally between the three children. However, he considered this would be an unjust outcome as Mary and Michael had already received the gifts of $140,000 each referred to in cl 4.3 of the will. He therefore accepted as the “most just and fair outcome” Mr McCarthy’s
68 At [300].
69 At [303].
70 At [304].
71 At [276].
72 At [306].
suggestion that the residual estate be divided into sevenths, with three sevenths going to Jane and two sevenths going to each of Mary and Michael.73
[140] As mentioned previously, the estate held funds of $870,230. Three sevenths of this amount is $372,956. One third of the total of the $870,230 held by the estate and the $280,000 received by Mary and Michael as gifts is $383,410 (($870,230 +
$280,000) ÷ 3). The Judge did not include these calculations in his decision, but they show that the result was that Jane ended up receiving a little less than one third of the total of the residuary of the estate and the gifts.
Grounds of appeal
[141] As they did in the Family Court, the appellants accept that Anna breached her moral duty to Jane. Their challenge concerns the extent to which the moral duty was breached. They say that the breach was not as extensive as it was found to be by the Judge. They argue that the Judge was wrong to make the factual findings he made in the absence of cross-examination in relation to the affidavits filed by the parties. They further argue that, contrary to the Judge’s findings, the reasons given for excluding Jane in Anna’s will were justified. There was appalling and violent behaviour by Jane as a teenager. The gun incident further justified the exclusion. So too did the fact that they were estranged and there was no contact between them for several decades.
[142] The appellants also challenge the remedy granted by the Judge. They say the award made by the Judge was excessive. They say that a claim based solely on moral and ethical considerations, and not also economic ones, will generally be for no more than 10 per cent of the estate. They also say that the Judge erred by not considering the size of the estate and competing claims. Finally, they say that the Judge erred by taking into account the gifts of $140,000 each to Mary and Michael.
73 At [307].
The extent of the moral breach
Absence of cross-examination
[143] As I have said, the appellants submit the Judge was wrong to make the factual findings he did in the absence of cross-examination. This is a new argument. It was not raised in the Family Court.
[144] The reason there was no cross-examination was because before the hearing counsel agreed to proceed without it. My understanding is that this is a common practice in cases of this kind in the Family Court. Cross-examination risks making family wounds worse. As the Judge said, the siblings’ relationship was damaged enough without the further ordeal of being cross-examined in court.74
[145] Another advantage of eschewing cross-examination was that it meant that the hearing could be much shorter. The hearing only took a day. Had there been cross- examination, it would have taken significantly longer. Having a one-day trial would have saved significantly on legal fees and it could well have meant the hearing took place earlier.
[146] Having agreed not to cross-examine, both sides invited the Judge to make findings on matters that were contested in the affidavits. The Judge took up that invitation and wrote a 67-page judgment that closely reviewed all the available evidence.
[147] Even though the appellants are now taking the point about the lack of cross- examination, they also filed 38-page submissions for this appeal that contain a detailed review of the evidence and argue that I should prefer their evidence on key questions.
[148] In my view, it was not an error for the Judge to proceed in the way that he did. Neither party took the point that he could not resolve the disputed evidence in the absence of cross-examination. To the contrary, he was invited to do so. He analysed the evidence as best he could in an orthodox way. He considered factors such as independent extraneous evidence, consistency of evidence (both internally and with
74 At [293].
other evidence) and the inherent probabilities. He also generally articulated why and to what extent the evidence of the parties was accepted or rejected and the effect this had on the determination.75
Jane’s behaviour as a teenager
[149] The appellants are critical of the Judge’s conclusion that it was misleading for Anna to say that Jane was “removed” from Peter’s and her care as a teenager. They say that the Judge’s approach was “unduly technical” because in the end Jane was “removed” from her parents’ care by a court order.
[150] Mr McCarthy accepted that misleading was perhaps too strong a word. He said a better description for what Anna said was that it was a “misdescription”.
[151] In my view, it was misleading or a misdescription for Anna to say that Jane was “removed” because it involved a half-truth. Technically she was removed by a court order. However, in reality the order was made with Anna and Peter’s consent.
[152] Further, Anna’s statement gave the impression that the reason Jane was removed was because of “her appalling and violent behaviour” towards her parents when in fact, the Judge found, there was a “complete paucity” of violent behaviour. The true reason she was removed was because she kept running away from home because of the tension between her and her parents due to their “dysfunctional relationship”.
[153] The appellants submit there were many examples of Jane’s appalling behaviour. They refer here to the two letters from the principals of Edgewater College and Howick College, reports from various social workers, and Mr Guild’s report. These documents certainly show that Jane’s behaviour was challenging. However, I do not think that it is right to characterise her behaviour as “appalling” particularly when the Judge found that the underlying cause of the behaviour was the dysfunctional relationship of her parents.
75 Basingstoke v Groot [2007] NZFLR 363 (CA) at [39]–[40].
[154] Even if there was no explanation for the behaviour and it could reasonably be called “appalling”, it would not provide a reasonable justification for Jane’s exclusion from Anna’s will. Misbehaviour by teenagers, including very serious misbehaviour for no obvious reason, causes a great deal of stress to parents, but is unfortunately just part of life. In general, it calls for patience, compassion and understanding, rather than harsh judgement.
[155] The appellants concede that there is limited evidence of Jane engaging in violent behaviour but they rely on two incidents as examples. The first is when Jane threw a chair at one of her teachers. The appellants note that Jane herself gave evidence about this. However, she also explained the context in which it occurred. It was bad behaviour, and it did result in it being agreed that Jane should transfer to a new school. But it was not a serious case of violence. There is no suggestion the teacher was injured.
[156] The second incident relied upon by the appellants as an example of violence by Jane is what occurred on Christmas Day 1977. They criticise the Judge for giving no reason for preferring Jane’s version of what occurred. However, the Judge justified his finding by referring to the lack of any independent evidence of violent conduct by her.76
[157] In any case, all Mary says about the evidence is that Jane “physically attacked our mother”. No details are provided. If Jane really did physically attack her mother, it is reasonable to assume it was not a serious attack or Mary would have provided further details.
[158] I am not satisfied the Judge erred in his findings regarding Jane’s behaviour as a teenager.
76 [Johnson] v [O’Dea], above n 1, at [195]–[198].
The gun incident
[159] As they did in the Family Court, the appellants place particular emphasis on the gun incident. Even though it was not referred to in the will or Mr O’Brien’s notes, they say it was an important reason why Jane was excluded from the will.
[160] The appellants do not specify any particular reason why the Judge was wrong to prefer Jane’s evidence, other than that Jane did not refer to it in her initial affidavit. The first mention of it was in Mary’s affidavit in response. Jane provided her account in her affidavit in reply. However, this is not a good reason to prefer Mary’s account over Jane’s.
[161] A stronger submission for the appellants is that, even on Jane’s account, the gun incident was a serious one. The fact that a gun was involved at all and that the police were called means that it must be treated as serious.
[162] However, on Jane’s account, she had a gun in the boot of her car, but she did not use it in any way. She did not point it at anyone. It never left the car, except when Peter took it away.
[163] Mr Jenkin pointed out that Jane’s affidavit says that, when the police spoke to her about the incident, they said they had been told that Jane had threatened her father with a gun. He submitted that this is evidence that Jane had in fact threatened him. However, it is also quite possible that Jane is mistaken in her affidavit about what the police said. After all, she is recalling what they said to her over thirty years ago.
[164] The incident was serious, but it must be viewed in context. Jane was naturally upset and emotional because she had not been told that her parents were about to leave the country permanently. Further, on Jane’s account, only her father was present at the time, and he seems to have quickly forgiven her. As the Judge found, they always had a loving and close relationship.
[165] None of the points made by the appellants convince me that the Judge erred in his findings regarding the gun incident.
Estrangement
[166] The appellants’ final challenge to the Judge’s decision relates to the cause of Jane and Anna’s estrangement over the final 28 years of Anna’s life. As I have explained, the Judge found that Anna was responsible for the estrangement and that the reasons for their estrangement went right back to Jane’s early childhood and teenage years.
[167] The appellants attack the Judge’s conclusions in two ways. First, they point to the fact that Anna and Jane did have some contact in Jane’s twenties. It was only after the gun incident that all contact ended. This, the appellants say, shows that it was the gun incident that ended their relationship. But, although they did have some contact in Jane’s twenties, it was limited and, based on the Judge’s findings, that was due to Anna’s behaviour towards Jane, not the other way around.
[168] Second, the appellants say the Judge was wrong to place reliance on Mr Guild’s report. However, both parties were inviting the Judge to make findings regarding Jane’s behaviour as a teenager. To decide which of the two versions of events he should prefer it was appropriate for the Judge to have regard to the report as independent extraneous evidence.77 The appellants now submit that the report was documentary hearsay but both sides rely on documentation of that kind (for example, the appellants rely on the two principals’ letters) and in the Family Court neither side objected to the admission of any of the documents.
[169] Third, the appellants are critical of the Judge’s reliance on his experience as a Family and Youth Court Judge. But all judges rely on their experience in deciding cases. In any case, the comments in this part of the judgment did not form an essential part of the Judge’s reasoning.
[170] Fourth, the appellants place reliance on Jane’s eulogy at her mother’s funeral. Their submission seems to be that it contradicted the Judge’s findings regarding their relationship. However, I cannot see anything in the eulogy which is materially at odds with the Judge’s findings.
77 Basingstoke v Groot, above n 75, at [39].
Conclusion
[171] For these reasons, I do not accept that the Judge erred in reaching his conclusions that the reasons Anna gave in her will for excluding Jane were unjustified and that neither the gun incident nor their subsequent estrangement justified her exclusion. I uphold the Judge’s conclusions regarding these matters.
[172] It follows that I also uphold the Judge’s overall conclusion regarding the extent of Anna’s moral breach. It was a very significant breach. As the Judge put it, Anna’s treatment of Jane by entirely excluding her as a beneficiary was completely unjust and immoral.
The appropriate remedy
No more than 10 per cent of the estate
[173] The appellants’ first argument in support of their contention that the award was excessive is that a claim based solely on moral and ethical considerations, and not also economic ones, will generally be for no more than 10 per cent of the estate.
[174] In Williams v Aucutt the Court of Appeal recognised what has come to be known as a “recognition” claim. This is a claim by an adult child who is in no economic need and is based purely on “recognition of [the child] belonging to the family and of having been an important part of the overall life of the deceased.”78
[175] I accept that there is some support in the authorities for the proposition that a pure recognition claim, that is, a claim that is based solely on recognition, will generally not be for more than 10 per cent of the estate.79 But in Talbot v Talbot the Court of Appeal refers to research suggesting that in larger estates, where the testator is able to satisfy all moral claims, the courts have generally awarded between 12.5 and 20 per cent of the estate to a dutiful child not in financial need.80 More importantly,
78 Williams v Aucutt, above n 4, at [52].
79 Bill Patterson Law of Family Protection and Testamentary Promises (5th ed, LexisNexis, Wellington, 2021) at [2.11], [4.21] and [9.7]; and Emeny v Mattsen [2024] NZHC 291 at [35].
80 Talbot v Talbot, above n 21, at [65].
Jane’s claim is not merely for recognition. It is also based on Anna’s neglect and mistreatment of her. There is no 10 per cent limit in relation to claims of this kind.
Size of the estate and competing claims
[176] The appellants’ next argument is that the Judge erred by not considering competing claims or the size of the estate.
[177] As discussed above, it is well-recognised that the size of the estate and any other competing moral claims are highly relevant.
[178] As mentioned, the Judge agreed with Mr Jenkin’s description of the estate as “not large”.81 But he also said that the “competing claims” of Mary and Michael were not relevant because provision was made for them in Anna’s will.82 The appellants submit that this was an error.
[179] I agree that the Judge was wrong to say that Mary’s and Michael’s competing claims were not relevant. Had the estate been large, there would have been plenty of money to go around and the Judge could have decided what Jane should receive without having regard to what Mary and Michael should receive by virtue of their moral claims as Anna’s children. As things stand, however, the estate is not large, so Jane’s claim cannot be looked at in isolation. Potentially, it might be necessary to reduce the award that would otherwise be made to Jane to ensure that the moral claims of Mary and Michael are also dealt with appropriately.
[180] However, in my view, despite saying that competing claims are not relevant, the result that the Judge reached did have proper regard to Mary’s and Michael’s claims. The appellants submit that the result was that Jane received 43.5 per cent of the estate. However, this does not take into account the gifts of $140,000 to Mary and Michael. For the reasons I give below, these need to be accounted for. The 43.5 per cent also includes the costs award made by the Judge in favour of Jane. The estate was ordered to pay Jane costs of $9,645.50 from Mary and Michael’s share of the
81 [Johnson] v [O’Dea], above n 1, at [281] and [283].
82 At [282].
residuary.83 The costs award is a separate matter. It relates to conduct of the litigation, not to the moral claims of any of the parties. Therefore, it should not be included in the analysis of the competing claims. If the two payments of $140,000 are taken into account and no regard is had to the costs amount, then the result of the Judge’s decision is that Jane will receive a little less than one-third of the estate. This strikes a reasonable balance between the competing moral claims of the three siblings.
[181] The Judge makes the comment that Mary and Michael’s offer of 10 per cent is “woefully inadequate” to remedy Anna’s breach of moral duty “bearing in mind the low size of the estate”.84 The appellants are critical of this comment. They say that rather than reduce the award because the estate was not large, it would appear from his comment that he did the opposite.
[182] I can see why this comment has caused confusion. However, I do not think it shows that the Judge made an error. My interpretation of the comment is that the Judge had in mind the dollar amount that Jane would receive if she only received 10 per cent of the estate. The estate has funds of roughly $870,000. The Judge’s comment was in reaction to the possibility that Jane might only receive around $87,000. His view was that would be woefully inadequate. In any event, for the reasons I have explained above, the end result was that the Judge struck a reasonable balance between the three competing moral claims.
The $140,000 gifts
[183] Finally, the appellants say that the Judge erred by taking into account the gifts of $140,000 each to Mary and Michael. No authority was cited to support this proposition.
[184] In my view, the submission is not supported by either principle or the authorities. The task of the courts is to decide what is needed to remedy the moral breach. Where, as here, the estate is not large and there are competing moral claims it is necessary to consider the extent of each of the claims. In assessing the moral claims
83 [Johnson] v [O’Dea] [2024] NZFC 556.
84 [Johnson] v [O’Dea], above n 1, at [306].
of Mary and Michael, a relevant consideration is the financial benefit they received from Anna during her lifetime. It follows that the gifts of $140,000 should be taken into account. The authorities confirm that this is the correct approach.85
[185] The need to take the gifts into account is particularly strong here because the gifts were made in the lead up to and in contemplation of Anna’s death. Clause 4.3 of the will makes it plain that the gifts were taken into account by Anna in deciding what provisions she should make.
Conclusion
[186] For these reasons, I am satisfied that there is no justification for me to intervene in the Judge’s exercise of his discretion. There has been no error of law or principle. The Judge did not take into account an irrelevant consideration or fail to take account a relevant consideration. The decision below is not plainly wrong. No reasonably plain ground has been made out upon which the Judge’s order should be varied.
Result
[187]The appeal is dismissed.
[188]If the parties cannot agree on costs, then I direct as follows:
(a)Jane is to file and serve a memorandum of no more than three pages within 20 working days; and
(b)Mary and Michael are to file and serve a memorandum in response of no more than three pages within a further 10 working days.
[189]I will then deal with costs on the papers.
Blanchard J
85 Talbot v Talbot, above n 20, at [51].
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