O'Neill v O'Neill - [2021] NZCA 585

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA716/2020
[2021] NZCA 585

BETWEEN	MARTIN TIMOTHY O’NEILL Appellant
AND	JUDITH ANNE O’NEILL Respondent

Hearing:	7 October 2021
Court:	Courtney, Woolford, Mander JJ
Counsel:	P V Cornegé for Appellant P J Dale QC and L T Meys for Respondent
Judgment:	8 November 2021 at 9.30 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BCosts are awarded to the respondent for a standard appeal on a band A basis and reasonable disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mander J)

Martin O’Neill (Martin) is one of three children from the first marriage of his father, Larry O’Neill (Larry). After Larry separated from his first wife in 1979, he commenced a relationship with Judith O’Neill (Judith) that lasted for some 37 years until Larry’s death in August 2016, aged 84. The couple married in 1999.
The major asset of Larry’s estate was his half share in the couple’s Hamilton home which they owned as tenants in common. In his last will, dated June 2012, Larry left his half share to Judith. All three adult children challenged the will, claiming that Larry lacked testamentary capacity and that this will was the product of Judith’s undue influence. Those claims were dismissed in the High Court by Downs J, as was a claim by the children under the Family Protection Act 1955 (the Act) that Larry breached his moral duty to provide for them.[1]
[1]O’Neill v O’Neill [2020] NZHC 2988 [High Court judgment].
Martin does not challenge the Judge’s finding that the will was valid. However, unlike his siblings, he appeals the decision to decline his family protection claim. Martin maintains that Downs J erred by failing properly to distinguish his financial position from that of his siblings and that he did not correctly apply the applicable principles under the Act.

Background

Larry was a retired solicitor whose estate was modest. It included his half share in the Hamilton home which he and Judith had built in 2000. Both had contributed financially to the purchase of the section and the cost of its construction. Judith still lives in the home and Larry’s half share is the only major asset of his estate.
In Larry’s final 2012 will, he left what was described as the Fairfield Investments Share Portfolio in equal shares to his children. As at the date of the 2012 will, this represented the value of Larry’s holdings in a share club which was believed to be worth some $7,200 at that time. Larry subsequently sold the shares and, by the time of his death, the portfolio was worth nothing. However, there remained a separate share portfolio held with Forsyth Barr that in February 2017 was valued at some $22,000. That formed part of Larry’s residuary estate that passed to Judith after payment of debts and funeral and administration expenses.
Larry had been a partner in a firm of solicitors until they merged with another firm in…

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.

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Details

Case: [2021] NZCA 585
Decision Date: 8 November 2021 at 9.30 am

CaseChat Overview and Summary

The appeal by Martin O'Neill against the High Court decision in O'Neill v O'Neill, which dismissed his claim under the Family Protection Act 1955, was heard by the Court of Appeal of New Zealand. The appeal questioned whether Larry O'Neill breached his moral duty to provide for Martin, particularly focusing on whether the Judge correctly assessed Martin's financial situation in relation to his siblings. The appeal also examined the impact of any award on Judith O'Neill, Larry's widow, and whether the Judge should have considered a recognition award for Martin.

In reviewing the evidence, the Court noted that while Martin's financial position was indeed poorer than his siblings, the lack of detailed financial information from Martin made it difficult to assess the full extent of his need for maintenance and support. The Court found that Downs J correctly identified the principles to be applied and did not err in assessing Martin's financial situation or in declining to make a recognition award. The Court concluded that Larry's primary duty was to Judith, and given the modest size of the estate, Larry was entitled to structure his will to provide security for Judith. The Court also considered that any award to Martin would have significantly impacted Judith's financial security, and therefore, no breach of moral duty was found.

The appeal was dismissed, and costs were awarded to the respondent on a standard appeal basis with reasonable disbursements.

Orders