Ormsby v Van Selm

Case [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…

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Ormsby v Van Selm [2015] NZHC 2822
Case
[2015] NZHC 2822
Decision Date

CaseChat Overview and Summary

In Ormsby v Van Selm, Alan De Lisle Ormsby, the son of the deceased Elizabeth Ormsby, appealed against a decision of the Family Court that Mrs Ormsby had breached her moral duty to her daughters, Janine Alexandra Ormsby and Jacqueline Ann Van Selm. The Family Court had ordered a division of the farm, comprising the bulk of Mrs Ormsby's estate, into three equal shares between Alan, Janine, and Jacqueline. The appeal raised a sole issue relating to the quantum of relief, with Alan arguing that the Family Court had essentially re-written the will on "fairness" grounds, rather than assessing what sum would be appropriate to provide for the proper maintenance and support of Janine and Jacqueline, as required by s 4 of the Family Protection Act 1955.

The Court considered whether the Family Court Judge had applied the correct legal test when assessing what provision should be made from Mrs Ormsby's estate for the proper maintenance and support of Janine and Jacqueline. Katz J concluded that there was force in Alan's submissions, as the Judge likely succumbed to the temptation to re-write the will along "fairness" lines. However, the authorities were clear that it was not for courts to re-write wills on fairness grounds, and the court was required to do no more than the minimum to redress the breach of moral duty that had occurred.

In assessing the amount required to redress Mrs Ormsby's failure to make adequate provision for Janine and Jacqueline's proper maintenance and support, Katz J found that an award of 30 per cent of the farm in favour of Janine and 25 per cent of the farm in favour of Jacqueline would be appropriate, given their financial need and the egregious breach of moral duty committed by Mrs Ormsby. The appeal was allowed, and the order of the Family Court was set aside, with Mrs Ormsby's will to be altered to vest the farm property in Alan, Janine, and Jacqueline in the shares of 45 per cent, 30 per cent, and 25 per cent, respectively.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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