Ormsby v Van Selm

[2015] NZHC 2822

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 Court

BETWEEN

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 respondent
Judgment:	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…