Ormsby v Van Selm
[2015] NZHC 2822
•13 November 2015
NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS
11B TO 11D OF THE FAMILY COURTS ACT 1980, FOR FURTHER INFORMATION, PLEASE SEE ION/RESTRICTIONS-ON-PUBLICATIONS
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CIV-2015-419-184 [2015] NZHC 2822
UNDER The Family Protection Act 1955 IN THE MATTER
of an appeal from a judgment of the
Family CourtBETWEEN
ALAN DE LISLE ORMSBY Appellant
AND
JAKE VAN SELM First Respondent
JACQUELINE ANN VAN SELM Second Respondent
JANINE ALEXANDRA ORMSBY Third Respondent
Hearing: 13 August 2015 Counsel
D M O'Neill for appellant
K Hoult and D Mayall for second respondent
G M Spry for third respondentJudgment:
13 November 2015
JUDGMENT OF KATZ J
This judgment was delivered by me on 13 November 2015 at 3:00pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors: Koning Webster Lawyers, Papamoa Niemand Peebles Hoult, Hamilton Norris Ward McKinnon, Hamilton
ORMSBY v VAN SELM [2015] NZHC 2822 [13 November 2015]
Introduction
[1] Alan Ormsby, Jacqueline Van Selm (known as Tia) and Janine Ormsby are the three surviving children of the late Elizabeth Ormsby (“Mrs Ormsby”).1
Mrs Ormsby died in 2007 and her husband, Jack Ormsby, died three years later in
2010. Three other children of the couples’ marriage pre-deceased their parents.
[2] When Mrs Ormsby died she left the family farm, which comprised the bulk of her estate, to Alan. Tia and Janine issued proceedings in the Family Court under s 4 of the Family Protection Act 1955 (“Act”). They claimed that their mother breached her moral duty to them by failing to make adequate provision from her estate for their proper maintenance and support.
[3] The Family Court held in favour of Tia and Janine. The Judge found that Mrs Ormsby had breached her moral duty to them and that a division of the farm between Janine, Alan and Tia, in equal shares, was necessary to remedy the breach. Alan now appeals that decision. He does not dispute that Mrs Ormsby owed a moral duty to Janine and Tia, or that she breached that duty. The sole issue on appeal relates to the quantum of relief. In particular, Alan submits that the Judge essentially re-wrote the will on “fairness” grounds, rather than assessing what sum would be appropriate to provide for the proper maintenance and support of Tia and Janine, as s 4 of the Act required.
[4] Against this background, the key issues I must determine are:
(a) Did the Family Court Judge apply the correct legal test when assessing what provision should be made from Mrs Ormsby’s estate
for the proper maintenance and support of Tia and Janine?
1 The first respondent, Jake Selm, is Tia’s husband. He is the trustee and executor of
Mrs Ormsby’s will. He abides the decision of the Court.
(b)If the Judge did err in her approach, what provision would be appropriate, applying the correct legal test?
Factual background
[5] Most of the relevant factual background is not in dispute.2 Mrs Ormsby met her husband Jack in the 1950’s. Their first child, Caroline, was born in 1957 and they married the same year. They then had two more daughters, Janine and Wendy. When Janine was born in 1959 she was immediately placed in an orphanage, together with Caroline. Wendy subsequently joined them. In her first eight years of life Janine lived at two different orphanages. In that time, she remembered only one visit from her parents, although no warmth or affection was shown towards her during their visit.
[6] In 1960, Mrs Ormsby inherited a farm near Otorohanga and moved there with her husband.3 It appears that their three younger children were born there, Rosalind in 1963, Alan in 1964 and Tia in 1966.
[7] When Janine was about eight years old she and her sister, Wendy, were taken from the orphanage back to the family farm. Their elder sister, Caroline, had returned a year or so earlier. All of the children had a very difficult upbringing. Mrs Ormsby showed little or no maternal affection to them. They worked hard on the farm. They were socially isolated and never took family holidays or celebrated birthdays. Mrs Ormsby was the main breadwinner for the family, working as a nurse at Tokanui Hospital and then Waikato Hospital, and returning to the farm only on her days off. She was also primarily responsible for the farm management, although various sharemilkers were also engaged over the years. The current sharemilker has been working on the farm since 1992.
[8] Mr Ormsby’s contribution to farm or family life appears to have been minimal. He was a compulsive gambler who fathered eight children out of wedlock,
2 My summary of the factual background is based, in part, on the helpful summary in the judgment under appeal.
3 Mrs Ormsby initially inherited the farm as tenants in common in equal shares with her brother, but her brother subsequently gifted his share to Mrs Ormsby.
in addition to the six children of his marriage. Not surprisingly, the marriage was not a particularly happy one.
[9] Three of the couple’s six children died in adulthood, in tragic circumstances. Wendy died in 1978 of a drug overdose. Rosalind committed suicide when she was living in London in 1993. Caroline also committed suicide, in 1996.
Janine
[10] Janine is the eldest surviving child. She is five years older than Alan and seven years older than Tia. Janine’s evidence of life growing up on the farm painted a grim picture. Her return to the farm from the orphanage was a very difficult transition. Her life changed dramatically and, as one of the older children, she was expected to assist in the everyday running of both the household and the farm. At the outset she did not know her parents or Caroline and felt completely bewildered by the change.
[11] Janine’s relationship with her mother was distant and estranged throughout her childhood. The three older children suffered physical and sexual abuse at the hands of non-family members who worked or stayed on the farm. Their mother appears to have been too emotionally (and sometimes physically) remote to protect them from this. Indeed the evidence indicates that Mrs Ormsby was, at best, naïve in relation to the abuse or, at worst, simply chose to turn a blind eye to it.
[12] When Janine left the farm at aged 16 to go nursing, she was told by her mother never to set foot on the farm again. Subsequently Janine nursed at various hospitals in New Zealand and Australia. She returned to Te Kuiti, where her parents now lived in retirement, in about 1985, with her son. She lived there for the next ten years or so, supporting her parents during that time. Janine left Te Kuiti after her sister Caroline committed suicide in 1996. In 1997 Janine developed cancer. Although she now lived north of Te Kuiti, she continued to return regularly to support her parents.
Alan
[13] Alan also gave evidence of a bleak upbringing. He said there was no aroha in the home. The household was never a happy one and his parents argued a lot, mostly about money. He did not get on with his father, in part due to his father’s compulsive gambling and lack of contribution to family life. He did not recall his mother showing any maternal instincts to any of her children. He said that was his mother’s nature and in that regard they all suffered equally.
[14] Alan left school in 1981 at the age of 17, worked in the area and then moved to Australia five years later. Since then, for the past 29 years or so, Australia has been his home. He has worked in various jobs on building sites and the mines during that time. Between 1986 and 1996 Alan had very little to do with his mother or siblings. At the time of his departure, he said that he wanted to put some distance between himself and his family.
[15] In 1996 Mrs Ormsby asked Alan to assume a greater role in the management of the farm, but he was unwilling or unable to do so at the time. Nevertheless, despite the fact that he lived in Australia, Mrs Ormsby appointed Alan as a joint power of attorney for her, for property matters, in 2002.
[16] In 2004 Alan started visiting New Zealand on a regular basis and he continued to do so until his mother died in February 2007. There is no suggestion that Alan plans to return to live permanently in New Zealand. Australia is now his home.
Tia
[17] Tia was the youngest of the family. Her experience of family life does not seem to have been quite as bleak as that of her siblings, although her upbringing was certainly not an easy one. The family home was in a very run down state and Tia did not bring friends home because she did not want them to see her home environment. There were no family holidays or birthday celebrations and she said her childhood and high school years were not easy in a physical or emotional sense.
[18] Despite the hardships of her childhood Tia was a dutiful daughter throughout her mother’s life. After she left home in 1985, Tia travelled back and forth between Hamilton and Te Kuiti, assisting her parents until their deaths. She described herself as a confidante for her mother after the grief of losing three children. She cooked meals for her parents, arranged for additional home help and regularly did gardening and other maintenance work at her parents’ home. She undertook responsibility for Mrs Ormsby’s tangi arrangements and the subsequent unveiling. Tia did not receive any financial assistance from her mother during her lifetime and very little emotional support.
The will
[19] Mrs Ormsby’s will was executed on 10 April 2002. She left the farm (currently valued at $2,330,000) to Alan, together with any car owned by her at the date of her death. Mrs Ormsby’s chattels (which were of negligible value) were left equally to Janine and Tia. The residue of the estate ($235,152.06) was left equally to Alan, Janine and Tia. The net effect was that Alan received a bequest worth $2,594,
490.14 (93.5 per cent of the estate).4 Janine and Tia both received bequests of
$91,489.00 (3.2 per cent of the estate each).5
[20] The solicitor made notes based on Mrs Ormsby’s instructions when they met together, the day before the will was signed. The focus of those instructions was that Mrs Ormsby regarded the farm as her separate property and did not want it to pass to her husband. The solicitor’s notes recorded:
I am sole owner of farm. I don’t want my husband to share in it. We’re still together but he’s very dominating, 45 years marriage. He has put nothing in to the farm. Sharemilker on it.
[21] And later in those notes, in reference to Alan:
He has taken over management of farm and will try to reduce debt asap.
4 Janine purchased the car from the estate for $1,000.
5 This calculation does not take into account a minor bequest to Mrs Ormsby’s grandson in the sum of $2,289.09 and a bequest to her two granddaughters that is worth approximately $37,500 in total, assuming it is a valid bequest (which is unclear).
[22] Mrs Ormsby’s solicitor queried the lack of provision for Mrs Ormsby’s husband in her will. Mrs Ormsby made it clear, however, that that was what she intended. She said that she had paid an average of $20,000 per year into the farm and her husband had put nothing into it. She declined to consider giving her husband a life interest in the home, saying that he would be able to live there until his death anyway. There was no mention in the instructions of her two daughters or the reasons why she was leaving them both a much smaller bequest than Alan.
[23] It was accepted that Mrs Ormsby was of sound mind when she made her will. She was accompanied to her solicitor’s office by Alan, who was visiting from Australia at the time. His evidence was that he simply took his mother to the solicitor’s office and that he had no input into her instructions. The Judge accepted that evidence. I have no reason to depart from her view. I do note, however, that Mrs Ormsby’s advice to her solicitor that Alan had taken over management of the farm must have reflected her expectations, based on discussions with Alan at the time. The Judge found, however, that Alan never did take over the management of the farm. He left that task to the financial manager. Since Mrs Ormsby’s death the executor of the estate has been responsible for the financial management of the farm.
[24] There was some suggestion that Mrs Ormsby may have been motivated to leave the farm to Alan because he had done more work on it, that he was the only son, and also that Mrs Ormsby was anxious to ensure that her husband’s ex-nuptial children did not get a share.
[25] The Judge did not accept that Alan’s contribution to the farm outweighed that of his siblings. She found that all of the children were required to work hard on a daily basis. Nor does it appear that Alan showed any particular interest in the farm, nor any intention to return from Australia to manage it. The Judge said that:
By choice, he has been largely absent not only from the farm, but also from his mother’s life while she was alive and throughout his siblings’ lives.
[26] The Judge acknowledged that a testator may wish to ensure that a family farm remains in the family for the enjoyment of future generations. She did not believe, however, that that had played a significant part in Mrs Ormsby’s decision
making at the time she executed her will, particularly given that Alan has no children. Rather, Mrs Ormsby’s strong focus appears to have been on ensuring that her husband did not get the farm.
[27] There is simply insufficient evidence from which any definitive conclusion as to Mrs Ormsby’s motivations can be drawn, although it is certainly clear that she did not want her husband to inherit the farm. Ultimately, however, it is not necessary to reach a firm view as to Mrs Ormsby’s motivations in order to determine the extent of her breach of moral duty to Janine and Tia and what is required to remedy it. Although an understanding of why a testator made the decisions they did will often provide helpful background context, ultimately it is not for a beneficiary to justify the share bequeathed to him or her. Rather, it is for a claimant to establish that he or
she has not received adequate provision for their proper maintenance and support.6
What is the correct approach to assessing “proper maintenance and support”?
[28] The Act confers a discretion on the court to order that provision be made from an estate in favour of certain family members, if the deceased’s will does not make adequate provision for their “proper maintenance and support”. In Little v Angus the Court of Appeal summarised the proper approach to a claim under the Act as follows:7
The inquiry is to be whether there has been a breach of moral duty judged by the standards of a wise and just testator or testatrix; and if so, what is appropriate to remedy that breach. Only to that extent is the will to be disturbed. The size of the estate and any other moral claims on the deceased’s bounty are highly relevant. Changing social attitudes must have their influence on the existence and extent of moral duties. Whether there has been a breach of moral duty is customarily tested as at the date of the testator’s death; but in deciding how a breach should be remedied regard is had to later events.
[29] Although the phrase “moral duty” does not appear in the statute itself, it has, in effect, been grafted onto the statutory wording8 and is now recognised as being
6 Williams v Aucutt [2002] 2 NZLR 479, [2000] NZFLR 532 (CA) at [68]; Auckland City Mission v Brown [2002] 2 NZLR 650, (2002) 22 FRNZ 232 (CA) at [33].
7 Little v Angus [1981] 1 NZLR 126 (CA) at 127.
8 Re McGregor [1961] NZLR 1077 at 1085.
“too deeply embedded in the administration of the Act to be open to judicial reconsideration”.9
[30] A number of cases, including the decisions of the Court of Appeal in Williams v Aucutt;10 Auckland City Mission v Brown;11 and Henry v Henry12 have informed the modern approach to claims under the Act. The key principles for present purposes (focussing in particular on quantum issues) are as follows:
(a) “Proper maintenance and support” requires a broad approach that includes the need to recognise the child as a valued member of the family and other social and ethical factors. “Support” is a wider term than “maintenance” and is used in its wider dictionary sense of “sustaining, providing comfort”. A child’s path through life is supported not simply by financial provision to meet economic needs and contingencies but also by recognition of belonging to the family and of having been an important part of the overall life of the
deceased.13
(b)“Proper” denotes something different from “adequate” and the amount of an award is accordingly not to be measured solely by the need of maintenance which would be so if the court were concerned merely with adequacy.14
(c) Assessing what provision will constitute proper support is a matter of judgment in all the circumstances of the particular case. Where there is no economic need it may be met by a legacy of a moderate amount. On the other hand where the estate comprises the accumulation of the family assets and is more than sufficient to meet other needs,
provision so small as to leave a justifiable sense of exclusion from
9 Re Z [1979] 2 NZLR 495 at 506.
10 Williams v Aucutt, above n 6.
11 Auckland City Mission v Brown, above n 6.
12 Henry v Henry [2007] NZCA 42, [2007] NZFLR 640.13 Williams v Aucutt, above n 6, at [52].
14 Fisher v Kirby [2012] NZCA 310 at [111], citing Williams v Aucutt, above n 6, at [38] and Bosch v Perpetual Trustees Company Ltd [1938] AC 463 (PC) at 479.
participation in the family estate might not amount to proper support for a family member.15
(d)In cases of financial need, the amount necessary to remedy the failure to make adequate provision in the will, will be able to be determined with greater precision than in cases where the need is more of a moral kind.16
(e) The size of the estate and any other moral claims on the deceased’s bounty are relevant factors.17
(f) In assessing whether the deceased has made appropriate provision for the claimant’s proper maintenance and support, and what would be required to remedy a failure, the court should do no more than the minimum to redress a testator’s breach of moral duty. Beyond that point the testator’s wishes should prevail, even if the individual Judge might, sitting in the testator’s armchair, have seen the matter
differently.18 Testators are at liberty to do what they like with their
assets and to treat their children differently or to benefit others once they have made such provisions as are necessary to discharge their moral duty to those entitled to bring claims under the Act.19
(g)The Court’s power does not extend to rewriting a will because of a perception that it is unfair. Nor is disparity in the treatment of beneficiaries sufficient, in itself, to establish a claim.20
(h)Although awards should not be unduly generous, nor should they be unduly niggardly particularly where the estate is large and it is not
15 Williams v Aucutt, above n 6, at [52].
16 Henry v Henry, above n 12, at [58].
17 Little v Angus, above n 7, at 127.
18 Williams v Aucutt, above n 6, at [70]; see also Auckland City Mission v Brown, above n 6, at [36]; Henry v Henry, above n 12, at [55] and [58].
19 Williams v Aucutt, above n 6, at [70].
20 Re Leonard [1985] 2 NZLR 88 (CA) at 92; Williams v Aucutt, above n 6, Henry v Henry, above n 12, at [55].
necessary to endeavour to satisfy a number of deserving recipients from an inadequate estate.21
[31] In summary then, in assessing the appropriate quantum of an award under the Act in this case, the Judge was required to assess what is required for Janine and Tia’s proper maintenance and support, taking into account the various factors I have outlined above.
Did the Judge follow the correct approach to assessing “proper maintenance and support”?
[32] The Judge’s findings that Mrs Ormsby owed a moral duty to Janine and Tia, and that she breached that duty, have not been challenged. The sole challenge is to the Judge’s assessment of the quantum of award necessary to remedy that breach of duty.
[33] It was not in dispute that the Judge correctly identified the relevant legal principles in her judgment. Indeed she expressly referred to many of the key authorities I have summarised above. Her Honour also correctly observed that the will must be disturbed only to the extent necessary to remedy any breach, and that the focus must be on what is required for the proper maintenance and support of a claimant.
[34] The Judge also said that a wise and just testator would give considerable thought as to how best to be fair to all of the children, even if an unequal division was contemplated. She acknowledged, however, that mere unfairness is not sufficient to disturb a testator’s wishes. Applying the relevant legal principles to the particular facts of this case, she said that:22
This is a sizeable estate in which there is sufficient money to meet the needs of all claimants and the primary beneficiary.
It cannot be said that Mrs Ormsby wanted to preserve the maternal line. The land had been left by her grandmother to her and her brother. Preserving that line would have been achieved by leaving the farm to Janine and Tia. Nor
21 Fisher v Kirby, above n 14, at [120].
22 Ormsby v Van Selm [2015] NZFC 3242 at [152].
can it be said it was important to her to preserve the land for future generations. Alan has no children.
Each of the siblings has demonstrated financial need. None of them has been able to secure a sound financial base in their lives. All of them have suffered from their own experiences of childhood.
[35] Ultimately her Honour concluded that:23
I have reached a clear view that the deceased breached her moral duty to all of her children. In exercising the broad discretion available to me, I find that breach cannot be remedied by a nominal payment to each of the two sisters…
The breach can only be remedied by recognising the equal moral claim of Tia and Janine to their mother’s estate. I do not consider that their share should be any less than Alan’s share.
Accordingly I find that the will is to be altered at paragraph 4.1 to the effect that the farm property…is to vest in Alan, Janine and Tia in equal shares. If that means the farm must be sold, then that is warranted in the circumstances of this case.
[36] Janine and Tia submitted that it is implicit (given the Judge’s accurate summary of the key authorities) that her award of a one third share of the farm to them was not simply an assessment based on “fairness”. Rather, it was her view of the minimum amount that each of them required for their proper maintenance and support, even if it was not directly expressed in that way.
[37] Alan, on the other hand, submitted that the Judge erred in her application of the relevant legal principles to the facts. Although she referred to the relevant authorities and stated the correct test, she then failed to apply it. Alan submitted that although the Judge acknowledged that “mere unfairness” is not sufficient, her approach to quantum was ultimately premised solely on the concept of fairness, rather than on what was required for Janine and Tia’s proper maintenance and support. In particular, the Judge concluded that the “fair” thing for Mrs Ormsby to do would have been to treat all of her children equally. Implicit in the Family Court decision was a disregard of the deceased’s own wishes in favour of a presumption of equal sharing between the three surviving children.
[38] In my view, there is force in Alan’s submissions. Given the facts outlined above, there can be little doubt that the “fair” thing for Mrs Ormsby to have done would have been to divide the farm equally between her three surviving children. Indeed it could be argued that “fairness” would require that Janine and Tia receive a slightly larger share than their brother. In any event, Mrs Ormsby clearly owed all three of her children a strong moral duty, particularly given her shortcomings as a parent and the serious deprivations the children suffered during their childhood (in respect of which Janine appears to have suffered the most).
[39] Given the very sad facts of this case, the temptation to re-write the will along “fairness” lines is inevitably a strong one which, in my view, the Judge likely succumbed to. The authorities are clear, however, that it is not for courts to re-write wills on fairness grounds. Further, there is no “presumption” of equal sharing amongst children. People are at liberty to do what they like with their assets and to treat their children differently, provided that they make such provisions as are necessary to discharge their moral duty to those entitled to bring claims under the
Act.24 The focus must be not on what the Judge thinks would be “fair”, but rather on
what provision is necessary for a claimant’s proper maintenance and support, taking into account both their financial position and their entitlement to be recognised as a member of the family. Further, the court is required to do no more than the minimum to redress the breach of moral duty that has occurred.
What is required for Janine and Tia’s proper maintenance and support?
[40] I therefore now turn to the assessment of the amount required, in all the circumstances of this case, to redress Mrs Ormsby’s failure to make adequate provision for the proper maintenance and support of Janine and Tia. Although the principles summarised at [30](a) to [30](f) above are well established, their application to the facts of a particular case can be difficult. There is no simple “formula” to be followed in arriving at quantum. A range of awards can be found in the case law. Each case turns on its own facts.
[41] In McKenzie v Thomas the Court of Appeal said that it was preferable to repair a breach of moral duty by means of a specific legacy rather than a percentage of the estate that would fluctuate in value depending on the estate’s value, leading to a non-principled rewriting of the will by requiring equal sharing.25 Nevertheless it is apparent from previous cases that it is fairly common to make awards under the Act on a percentage basis. Janine, Tia and Alan all ultimately expressed a preference
for such a course, in part because there is some uncertainty around the farm’s current value. In particular, Alan is concerned that the farm’s value may have been detrimentally impacted by the recent fall in dairy prices.
[42] Alan’s position in the Family Court was that a 10 per cent share of the estate to Janine and Tia (about $270,000 each) would adequately provide for their proper maintenance and support. His position on appeal was somewhat more generous. His counsel submitted that a total award of 30 to 40 per cent for both claimants would be in the appropriate range.
[43] Janine and Tia, on the other hand, submitted that the Family Court’s award of one third of the farm to each of them was appropriate. Alternatively, if I found that the Family Court Judge had erred, an award equating to about $850,000 (but expressed as a percentage of the estate) would be appropriate.
[44] In Williams v Aucutt, the Court discussed the issue of awards to children whose entitlement under s 4 of the Act is on a family recognition basis, as distinct from economic need. They discussed the Court of Appeal case Re Shirley, in which a bequest of less than 10 per cent of the estate was a “relatively modest provision” but was “adequate provision” to recognise the child’s moral claim.26
[45] In a number of other cases awards to children on a family recognition basis alone, as distinct from economic need, have tended to be in the range of 10 per cent to 20 per cent of an estate, depending on the particular factors involved. Where the estate is small, and there are many competing moral claims, then obviously an award
is likely to be at the lower end. If an estate is large, there are few competing moral
25 McKenzie v Thomas CA120/02, 14 November 2002 at [16].
26 Williams v Aucutt, above n 6, at [49], citing Re Shirley CA155/85, 6 July 1987.
claims, and the breach of moral duty is particularly egregious, larger awards are often made. In this case both Janine and Tia have a very strong claim to an award for support on a family recognition basis. However, they also have a demonstrated financial need.
[46] Turning first to the “family recognition” issue, I agree with the Judge’s finding that the daughters had a childhood that was bereft of love or affection. In Janine’s case, her mother failed to protect her from abuse and the experience of spending her earlier years in an orphanage away from her family. This was immediately replaced, on her return to the farm, by a life where hard work, discipline and isolation were the norm. I concur with the Judge’s observation that:
[147] Mrs Ormsby had a duty to her two daughters to provide for their maintenance and support. She failed in that duty to meet their economic and emotional needs. Janine, in particular, was never recognised as an important part of the family. There is no evidence her mother ever turned her mind to Janine’s needs. On the contrary, I find that Janine’s treatment by her mother during her childhood was appalling by any standards. That is not disputed by either of her siblings. In spite of that treatment, Janine provided care and attention to her mother over many years. She has forgiven her mother and been a dutiful daughter providing physical and psychological support to her. In my view Janine is a deserving claimant who now suffers financial hardship. There is no good reason why Janine should have received such a paltry gift from her mother’s estate.
[148] Although Tia has better memories of her childhood, it was nonetheless difficult and demanding. She too has been a dutiful daughter and she too has limited financial means.
[47] I also agree with the Judge’s finding that Mrs Ormsby did not provide for the emotional and material needs of her daughters during her lifetime or in her testamentary wishes:
[151] … Her failure to do so was more than mere unfairness. She demonstrated a wilful disregard for their needs to the extent that she never discharged her duty as parent to the claimants either in childhood or adulthood.
[48] The hardships suffered by Janine and Tia are, in my view, very significant factors to be taken into account when considering the quantum of the amount needed to put right the deceased’s breach of moral duty to them. The fact that two of the six Ormsby children committed suicide as adults, and a third died of a drug overdose, is likely to be attributable in part to their sad and dysfunctional upbringing.
Nevertheless, despite what the Judge fairly characterised as “appalling” treatment by their mother, Janine and Tia were dutiful daughters. This is a case where all of the adult children would have been well justified in having very little to do with their parents, as Alan did for many years. Janine and Tia, however, elected not to go down that path. They cared for and supported their mother throughout their adult lives, until her death.
[49] Taking all of these matters into account, Mrs Ormsby’s breach of moral duty in this case was particularly egregious. A very significant award on family recognition grounds alone would be justified. In this case, however, there is the added factor that both Janine and Tia are in financial need. That factor takes this case significantly beyond those cases where awards have been made on family recognition grounds alone, often in relation to children who have become estranged from their parent.
[50] Janine’s home base is now Waiheke Island. Her adult son lives nearby. Her current financial and personal situation is precarious. She has not returned to full health since having cancer. She does not own a home, but house sits for friends. She has no assets of any value. Frankly, it is hard to imagine a more worthy claimant than Janine. There are few examples (if any) in the case law of claimants who have a stronger claim to maintenance and support under the Act. Any award in her favour should clearly be towards the generous rather than niggardly end of the scale.
[51] Tia is also not in a strong financial position. She has four children and is a full time mother. Her husband is a policeman. They have a relationship property agreement which recognises his police superannuation as his separate property. Her equity in the family home is a modest $71,750.00. She also had a very difficult childhood, was a dutiful daughter, and has a strong claim under the Act.
[52] Janine and Tia both relied on the Court of Appeal’s decision in Auckland City
Mission v Brown as providing helpful guidance to assessing the appropriate quantum in this case.27 The estate in Auckland City Mission was a substantial one, worth $4.6
27 Auckland City Mission v Brown, above n 6.
million. The Court of Appeal assessed an appropriate award (as at 2002) to the claimant daughter at $850,000 (about 20 per cent of the estate), explaining the basis of its reasoning as follows:28
We consider a wise and just testator would have ensured that [the daughter and her family] had the means to acquire a more substantial house for the family debt free and to clear the loan [on the existing house], … together with a sum to supplement their business income and provide a reasonably substantial contingency fund.
[53] The testator in that case had, prior to death, settled a property worth
$1,000,000 in trust for his grandchildren (the claimant’s children). Further, the claimant, although not wealthy, was not in financial need. That can be contrasted with this case where Janine and Tia are in significant financial need.
[54] In Fisher v Kirby the majority of a $3.7 million estate had been left to the testator’s nieces and nephew, to the exclusion of his three children. Two of the children were in a reasonable financial position, but one was impecunious and unwell. The Court of Appeal followed the approach taken in Auckland City Mission v Brown when looking at the need for maintenance and support of a child with no assets and ill health, and awarded him sufficient to obtain reasonable accommodation, and to provide an appropriate level of support in the
circumstances.29 The impecunious child in that case had similar needs for
maintenance as Janine does in this case, and some similar life experiences to both Janine and Tia, including a lack of parental support and affection. Ultimately the three children received awards of $750,000, $600,000 and $640,000 respectively.
[55] Obviously, as the Court of Appeal observed in Henry v Henry, the Auckland City Mission case should not be seen as authority for the proposition that the provision of sufficient money to purchase a home and provide a contingency fund is some kind of benchmark or default standard.30 Each case must be considered on its own merits. Nevertheless, in my view, the approach taken in Auckland City Mission
and Fisher v Kirby does provide some helpful guidance in this case.
28 Auckland City Mission v Brown, above n 6, at [45].
29 Fisher v Kirby, above n 14, at [145].
30 Henry v Henry, above n 12, at [78].
[56] Janine and Tia both submitted that their proper maintenance and support (taking into account their financial need and a recognition of their role within the family) requires an award of somewhere in the region of $850,000. This would provide sufficient funds for a suitable (but far from extravagant) home in either Hamilton (Tia) or Waiheke Island (Janine) and a modest contingency fund.
[57] As I have outlined above, in assessing what is required to remedy Mrs Ormsby’s failure to make appropriate provision for Janine and Tia’s proper maintenance and support, the court is required to do no more than the minimum to redress a testator’s breach of moral duty. Beyond that point the testator’s wishes should prevail, even if the individual Judge might, sitting in the testator ’s armchair, have seen the matter differently.
[58] Applying that approach, in the context of all of the circumstances of this case, I have concluded that an award of 30 per cent of the farm in favour of Janine and
25 per cent of the farm in favour of Tia would be appropriate. Based on the most recent valuations of the farm and the residuary estate this would result in a total bequests to Janine and Tia of approximately $790,000 and $674,000 respectively. I note, however, that the ultimate bequest will likely be reduced due to the legal costs incurred in these proceedings, as well as the costs of the sale of the farm. Hopefully, however, such bequests will enable both daughters to acquire suitable homes, debt free. Whether any contingency fund remains will obviously depend on the value of the homes that are purchased. In my view, awards at this level are the minimum that is required to address Mrs Ormsby’s egregious breach of moral duty.
[59] The difference in the amount of the two awards simply reflects that there are some differences between the position of the two daughters. In particular, although both daughters have a strong claim to support on family recognition grounds, Janine’s claim is even stronger than that of her sister, given her particularly harsh upbringing. This included her early years being spent in an orphanage, sexual abuse (which in part is attributable to parental neglect) and the almost complete absence of any maternal bonding or affection in her life. In addition, Janine has a greater degree of financial need than Tia, given that she does not own a home and has no assets.
Result
[60] The appeal is allowed and the order of the Family Court is set aside. Mrs Ormsby’s will is to be altered at paragraph 4.1 to the effect that the farm property is to vest in Alan, Janine and Tia in the following shares:
(a) Alan – 45 per cent; (b) Janine – 30 per cent; (c) Tia – 25 per cent.
[61] Leave is reserved to apply in the event that further directions are necessary in order to give effect to this judgment.
[62] Although Alan’s appeal has been successful, in that the Family Court Judgment was set aside, I note that the awards I have made are closer to those contended for by Janine and Tia than Alan. My preliminary view, in all the circumstances of this case, is that the reasonable legal costs of all parties should be met from the estate. If Mrs Ormsby had not breached her moral duty to the claimants, then these proceedings would not have been necessary.
[63] If costs cannot be agreed based on this preliminary indication, then leave is reserved to file memoranda. Any memorandum from Alan is to be filed and served within ten working days of this judgment, with any memoranda in response from
Janine and Tia to be filed within a further ten days.
Katz J
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