Public Trust v Relph - [2008] NZHC 1944

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2008-404-1922

UNDERTHE PROPERTY (RELATIONSHIPS) ACT 1976
BETWEEN PUBLIC TRUST Applicant
ANDDYVEKE VIGDIS ELIZABET RELPH Respondent

CIV 2008-404-1922

UNDER THE FAMILY PROTECTION ACT 1955

BETWEEN ANDREW MARK RELPH, PRISCILLA MAY BARKHUIZEN AND ROSEMARY ANNE NIEMACK
Plaintiffs

ANDDYVEKE VIGDIS ELIZABET RELPH Defendant

Hearing: 15 October 2008

Counsel: J H Drayton for Applicants
P A Craighead for Respondents

Judgment: 8 December 2008

JUDGMENT OF HEATH J

This judgment was delivered by me on 8 December 2008 at 2.00pm pursuant to Rule 540(4)
of the High Court Rules.
Registrar/Deputy Registrar

RELPH V RELPH HC AK CIV 2008-404-1922 8 December 2008

Introduction

[1] Mr Relph died at Auckland, on 27 February 2007, aged 83 years. He was survived by his second wife, Dyveke Vigdis Elizabet Relph (Mrs Relph), with whom he had lived for about 40 years, and four children of his first marriage. The four children are: Andrew Mark Relph (Andrew), Priscilla May Barkhuizen (Priscilla) and Rosemary Anne Niemack (Rosemary) and Robin Relph (Robin). Robin has been estranged from his late father for many years.

[2] At the time of his death, Mr Relph had property in New Zealand, South Africa and Switzerland. A Will executed on 4 July 2005 was admitted to probate in New Zealand. Mrs Relph was appointed as executrix and trustee under that Will. Subsequently, she has been replaced by the Public Trust because of a conflict of interest arising out of the present proceedings.

[3] Before his death, Mr Relph had executed two other testamentary documents. Both were dated 30 November 2002. One related to assets in Switzerland, the other to assets in South Africa.

[4] There is no evidence before me to prove that the Swiss and South African “Wills” are effective under applicable law. While the parties have agreed that I should assume that they are, for the purpose of the present applications, I propose simply to take account of the value of the assets identified in those testamentary dispositions in addressing the issues before me.

The applications

[5] There are three applications before the Court:

a) An application, under s 88(2) of the Property (Relationships) Act

1976 (the 1976 Act), by the Public Trust, as substituted executor and trustee of the estate of the late Mr Relph, for leave to make an application under s 25(1)(a) of that Act.

b)If leave were granted, a substantive application, by the Public Trust, under s 25(1)(a) of the 1976 Act.

c) If the substantive relationship property application were successful, claims by Andrew, Priscilla and Rosemary for relief under the Family Protection Act 1955 (the 1955 Act), out of the augmented deceased estate.

Background facts

[6] Mr and Mrs Relph met in South Africa in 1966. At the time they met, Mr

Relph remained married to his first wife, Joyce, the mother of the four children.

[7] Mr and Mrs Relph began to live together in 1967. Their first…

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.

Continue reading Public Trust v Relph

Details

AGLC: Public Trust v Relph [2008] NZHC 1944
Case: [2008] NZHC 1944
Decision Date: 8 December 2008

CaseChat Overview and Summary

The case of Public Trust v Relph involves the estate of Mr Relph, who died in February 2007, leaving behind a will and several testamentary documents. The dispute centers around the distribution of his property, including assets in New Zealand, South Africa, and Switzerland. The Public Trust, as the substituted executor and trustee of Mr Relph's estate, applied for leave to bring a relationship property proceeding under the Property (Relationships) Act 1976, and subsequently for a substantive application under the same act. Additionally, three of Mr Relph's children from his first marriage made claims under the Family Protection Act 1955. The court had to decide whether leave should be granted for the relationship property proceeding and, if so, how the estate should be divided between Mr Relph's widow and his children.

The court granted leave for the relationship property proceeding, finding that refusing leave would cause serious injustice as the estate could be augmented by a successful claim, rendering the children's right to claim under the Family Protection Act economic. The court also found that the inability of the estate to pay even modest legacies operated in favor of granting leave. In terms of dividing the relationship property, the court ordered an equal division between the Public Trust and Mrs Relph. Regarding the Family Protection Act claims, the court found that Mr Relph breached his moral duty to his children by not providing adequate provision for them in his will. The court ordered that approximately 50%-60% of the notional estate should be divided among the three children to remedy the breach. The court left the application under the 1955 Act for further consideration and reserved questions of costs.

In summary, the court granted leave for the relationship property proceeding, ordered an equal division of relationship property, and found that Mr Relph breached his moral duty to his children by not providing adequate provision for them in his will. The court also ordered that approximately 50%-60% of the notional estate should be divided among the three children to remedy the breach.

Orders