| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA716/2020 [2021] NZCA 585 |
| BETWEEN | MARTIN TIMOTHY O’NEILL |
| AND | JUDITH ANNE O’NEILL |
| Hearing: | 7 October 2021 |
Court: | Courtney, Woolford, Mander JJ |
Counsel: | P V Cornegé for Appellant |
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…
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- Case
- [2021] NZCA 585
- Decision Date
CaseChat Overview and Summary
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
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Evidence
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