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O'Dea v Johnson

O'Dea v Johnson

Case [2024] NZHC 2917 8 October 2024

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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,…

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 O'Dea v Johnson

Details

AGLC: O'Dea v Johnson [2024] NZHC 2917
Case: [2024] NZHC 2917
Decision Date: 8 October 2024

CaseChat Overview and Summary

Mary and Michael appeal against a decision of Judge N A Walsh in the Family Court that their mother, Anna, breached her moral duty to their sister, Jane, by excluding her from her will. The Judge concluded that Jane’s exclusion was unjust and immoral. He awarded Jane three sevenths of the estate. The appeal concerns both the extent of the moral breach and the appropriateness of the remedy. The appeal is dismissed. The Court found that the Judge did not err in concluding that the reasons Anna gave for excluding Jane were unjustified. Nor did the Judge err in concluding that the breach of moral duty was significant. The Court also concluded that the Judge did not err in his exercise of discretion when determining the appropriate remedy. The award of three sevenths of the estate was not plainly wrong. It appropriately balanced the competing claims of the three siblings. The appeal is dismissed and costs are to be determined on the papers.

Orders