O'Neill v O'Neill - [2020] NZHC 2988

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2019-419-000062

[2020] NZHC 2988

IN THE MATTER of the estate of LARRY MICHAEL O’NEILL

UNDER

Part 27 and Rule 27.6 of the High Court Rules 2016

BETWEEN

JUDITH ANNE O’NEILL

Plaintiff

AND

DAVID MICHAEL O’NEILL

Defendant

CIV-2020-419-000126

IN THE MATTER

of an application under the Family Protection Act 1995 and an application

under Part 18 of the High Court Rules 2016

BETWEEN

DAVID MICHAEL O’NEILL, MARTIN TIMOTHY O’NEILL and PHILIPPA SUSAN DENNIS

Applicants

AND

JUDITH ANNE O’NEILL

Respondent

Hearing: 19 – 21 and 27 October 2020

Counsel:

PJ Dale QC and LT Meys for Plaintiff/Respondent PJ Morgan QC for Defendant/Applicants

Judgment:

13 November 2020

JUDGMENT OF DOWNS J

This judgment was delivered by me on Friday, 13 November 2020 at 11 am pursuant to r 11.5 of the
High Court Rules.
Registrar/Deputy Registrar

O’NEILL v O’NEILL [2020] NZHC 2988 [13 November 2020]

Table of Contents

A will dispute [1]

Some dynamics [5]

Background [9]

Testamentary capacity [15]

Undue influence [40]

Analysis [49]

The claim under the Family Protection Act 1955 [67]

Analysis [73]

Conclusion [88]

Two evidence rulings during the trial [89]

Orders [93]

Costs [94]

A will dispute

[1] Disputes about wills can be bruising. Family members are often pitted against each other. Sometimes, everyone feels aggrieved. This case is no different. Larry O’Neill died 15 August 2016, aged 84. Larry has three adult children from his first marriage: David, Martin and Philippa. Larry and his first wife separated in 1979. Later that year, Larry and Judith commenced a relationship that endured for the 37 years until Larry’s death. The couple married in 1999.

[2] Larry was a very experienced solicitor. One of his practise areas was wills. Larry encouraged clients to update their wills every five years. Larry heeded his own advice; he made wills in 2002, 2007 and 2012.

[3] Larry and Judith were tenants in common of their Hamilton home, meaning, each owned a divisible half-share. Larry’s half-share is the only asset of significance in his estate. Larry’s 2002 will left that half-share to David, Martin and Philippa once Judith died. But, his later wills leave the half-share outright to Judith; she does not have a mere life interest as she did under the 2002 will. Therein lies the problem.

[4] David, Martin and Philippa learned of the later wills after Larry’s death. They say Larry lacked testamentary capacity when he made the 2012 will; and both of the

later wills are the product of Judith’s undue influence.1 Judith says Larry was mentally alert until his death and freely chose to leave her his half-share. David, Martin and Philippa say even if this is correct, Larry breached his moral duty to provide for them. They claim under the Family Protection Act 1955. Judith says Larry had good reasons for doing what he did, at least some of which he reduced to writing.

Some dynamics

[5] Much contextual evidence was…

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.

Keep reading for free

Create a free CaseChat account to read O'Neill v O'Neill and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NZHC 2988
Decision Date: 13 November 2020

CaseChat Overview and Summary

This case involved a dispute over the validity of Larry O'Neill's will and the claims of his children under the Family Protection Act 1955. Larry died in August 2016, leaving a will that left his half-share of a Hamilton home to Judith, his wife of 37 years. The will replaced earlier versions, which left the half-share to Larry's children from a previous marriage. The children, David, Martin and Philippa, challenged the will's validity on the grounds that Larry lacked testamentary capacity when he made the will and that it was the product of undue influence by Judith. They also claimed under the Family Protection Act. The court found that Larry had testamentary capacity when he made the will and that it was not the product of undue influence by Judith. The court also found that Larry did not breach his moral duty to the children under the Family Protection Act. The court granted probate of the will and dismissed the children's claims.

Orders