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 Subsequently, she has been replaced by the Public Trust because of a conflict of interest arising out of the present proceedings.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 home was a rented property in Johannesberg.  After Mr Relph’s separation from his first wife, Robin,  Andrew  and  Priscilla lived  with  their  mother.    Rosemary continued  her education, at a private boarding school in Natal.

[8]      Mr Relph divorced his first wife in about 1972.   They divided their assets between them.  It appears that Mr Relph continued to fulfil financial obligations in relation to the care, upbringing and education of the four children.

[9]      Mrs Relph deposes that the children did not accept their father’s reasons for separating from their mother.   Nor, she believes, did they accept her as a step- mother, following her marriage to Mr Relph on 9 May 1987.

[10]     In 1993 Mr and Mrs Relph decided to leave South Africa to live in New Zealand.  This was around the time of momentous change in South Africa that saw Nelson Mandela assume the Presidency of that country.   During those turbulent times, Mr and Mrs Relph feared a backlash against “anyone with a European heritage”.  They had “genuine fears” that a “blood bath” could ensue.

[11]     The  South  African  Government’s  policy,  around  the  time  they  left  that country, was to allow only limited assets to be moved out of the jurisdiction.  Mrs

Relph deposes that she and Mr Relph brought some artworks, Persian rugs, furniture and about 30,000 Rand each to New Zealand.   Mr Relph purchased Krugerands, which were deposited in Switzerland.

[12]     Mr Relph worked as a financial director of various businesses.  He also had qualifications in psychology and marriage guidance counselling.  Mrs Relph was a qualified shorthand typist and book-keeper who assisted Mr Relph in his work.  Both were  interested  in  share  trading  and  art.    Together,  they  accumulated  a  share portfolio and an art collection of some substance.

[13]     From the time Mr and Mrs Relph emigrated to New Zealand, Mr Relph did not work or operate  a  business.    Mrs  Relph  deposes  that  he  was  in  receipt  of Government superannuation from April 2003.   Proceeds from share trading were used to meet expenses.

[14]     Mr Relph suffered an incapacitating stroke on 14 January 2007.  He died just over a month later, on 27 February 2007.  The death certificate records a cause of death as “aspiration pneumonia with respiratory failure” (some three years earlier) and the more imminent “cerebrovascular disease, with stroke”.

[15]     Andrew, now aged 54 years, describes the relationship between himself and his father as “enduring”, “unbroken” and “loving”.   He deposes that his sisters, Rosemary and Priscilla, enjoyed a similar relationship.  Andrew accepts that in his father’s sunset years there was diminished contact, but says that was because both he and Rosemary were living in Perth, Western Australia.

[16]     Andrew is a self-employed clinical psychologist.  From his business, he earns approximately $AUS80,000  per  annum.    His  home  is  mortgaged  and  he  has  a modest, self-managed, superannuation fund.  Andrew’s first marriage ended around

1992.   He remarried in May 2007.   His wife is pregnant with their first child, expected in June 2009.

[17]     Rosemary is aged 56 years and also lives in Perth.   She has four children from two relationships.   Two of those children, Timothy and Richard Pappas, are

beneficiaries of Mr Relph’s estate.  Rosemary lives alone in a rented apartment.  Her children live independently of her, but also reside in Western Australia.

[18]     Rosemary is employed part-time.  She suffers from a back injury, as a result of bulging discs and very little cartilage between the vertebrae in the lower spine. Rosemary is unable to work longer hours due to chronic pain from her condition. She is on medication.   In the period from June 2007 to June 2008, she earned approximately $AUS30,000, after tax.

[19]     Priscilla  lives  in  Auckland.    She  is  47  years  old,  is  employed  by  the Parkinsons’ Society and earns approximately $NZ45,000, after tax.  She has recently joined the KiwiSaver scheme, but has no personal superannuation.   Together with her  husband,  Priscilla  owns  her  own  home  in  Auckland,  together  with  two mortgaged rental properties.

[20]     Priscilla is also in poor health.  She suffers from chronic rheumatoid arthritis and has done so since she was nine years old.  This disability impacts on her ability to work.  She believes that the pain and lack of mobility may require her to cease work before retirement age.

[21]     All three children are concerned about their mother’s health and ability to provide for herself.   Joyce now resides in New Zealand but suffers from a heart condition that limits her mobility and energy.   She has a pacemaker and requires assistance with housework.  She lives in one of the two rental properties owned by Priscilla and her husband.    Her only source of income is New Zealand superannuation.

[22]     Mrs Relph is aged 62 years, not much older than her step-children.   Her current health is good.  She works with the Department of Education as a teacher and expects to do so until she attains the age of 65 years.  At that stage her income will be limited to funds derived from the KiwiSaver scheme, any share trading that she may successfully complete, music lessons provided to private students or work as a relief teacher.

[23]     Mrs Relph and the three children who claim against the estate are all of modest means.

The New Zealand Will

[24]     Under the New Zealand Will, Mr Relph provided for legacies to be paid to two grandchildren (Timothy and Richard Pappas, Rosemary’s children) and to a friend (Andries Mehlape).  Each grandchild was left $25,000.  Mr Relph bequethed

$10,000 to Mr Mehlape, his former gardener in South Africa.   Mr Relph gifted a Honda Civic motor vehicle owned at the time of his death to his son-in-law, Priscilla’s husband.  The residue of the estate was left to Mrs Relph.

[25]     The extent of assets in South Africa is unclear.  They appear to be of minimal value.  For example, I am told that the sum of 1,732.74 Rand, held in a bank account, equates to approximately $NZ315.00, on exchange rates prevailing just before the hearing.

[26]     Assets in Switzerland included gold coins and Krugerand which had been deposited in a Swiss bank after Mr Relph left South Africa to live in New Zealand. One third of the valuables contained in the Swiss accounts were bequeathed to Mrs Relph, Andrew and Priscilla respectively.  Andrew and Priscilla have each received

$AUD100,000 from moneys held in a bank account, as well as 21 Krugerand each, worth about $30,000 to each of Andrew and Priscilla.

[27]     Some six days before Mr Relph’s death, money and shares held by ABN AMRO   Craigs   (in   the   sole   name   of   Mr   Relph   and   amounting   to   some

$NZ334,941.82) were transferred into the joint names of Mr and Mrs Relph.  That was done on or about 21 February 2007, after Mr Relph suffered a stroke but some six days before his death.

[28]     Because almost all of the assets were jointly held, they passed to Mrs Relph by survivorship.   The net value of the estate of the late Mr Relph (excluding any relationship property) is estimated at about $13,000, before legal and estate administration costs are brought to account.  That means there is insufficient money

to pay the legacies to the two grandchildren and Mr Mehlape.   The motor vehicle remains in the pool of estate assets.   Despite the gift of that asset to Priscilla’s husband, the vehicle remains in Mrs Relph’s possession.

[29]     The best estimate of the net value of the total property pool (excluding Swiss assets, but including some situated in South Africa) is something in the order of

$1.6million.  Some assets have not been assigned values but may increase the size of the estate significantly, if realised.

Leave to bring proceedings under the 1976 Act

[30]     If  a  spouse  has  died,  leave  is  required  to  bring  relationship  property proceedings seeking a declaration dividing relationship property.   Section 88(2) of the 1976 Act provides:

88    Who can apply

…

(2)     The personal representative of the deceased spouse or partner may, with the leave of the Court, apply for an order under section 25(1)(a). The Court may grant leave only if it is satisfied that refusing leave would cause serious injustice.

….  (my emphasis)

[31]     Section 25(1)(a) of the 1976 Act provides:

When Court may make orders

(1)On an application under section 23, the Court may— (a)   make any order it considers just—

(i)     determining the respective shares of each spouse or partner in the relationship property or any part of that property; or

(ii)    dividing the relationship property or any part of that property between the spouses or partners:

…

[32]     The first question is whether leave should be granted.   In Public Trustee v Whyman [2005] 2 NZLR 696 (CA), guidance was given on the circumstances in which “serious injustice” would be caused to an applicant, if leave were refused under s 88(2) of the 1976 Act.

[33]     Whyman was not a s 88(2) case.   Competing claims (by Ms Whyman and Public Trust) had been made to administer a deceased estate.  The deceased had died intestate.  He was living in a de facto relationship with Ms Whyman, at the time of his death.  Ellen France J, in the High Court, dismissed the Public Trust’s application and granted administration to Ms Whyman, on the basis of a prior right to the grant of administration: see s 60(1) of the Administration Act 1969 and r 665 of the High Court Rules.   The High Court was not satisfied that the Public Trust should be appointed to bring an application for leave under s 88(2) because a serious injustice would  not  be  caused  through  the  absence  of  an  application.    In  so  holding, Ellen France J applied a test to determine “serious injustice” that I had articulated in Re Williams [2004] 2 NZLR 132 (HC) at [51] and [52].

[34]     In Williams, I had declined leave under s 88(2).   The Court of Appeal, in Whyman, disagreed with the test I applied.  Further, it declined to endorse the result reached in that case.  To understand the way in which the Court of Appeal addressed the threshold issue of leave, it is necessary to contrast passages in the Williams and Whyman judgments.

[35]     In Williams, I explained the nature of the “serious injustice” test as follows:

[51] In my view, the term “serious injustice” suggests injustice of a type that the Court cannot tolerate. While not creating a standard as high as the “repugnant to the interests of justice” test used in s 13 of the 1976 Act (as a threshold test for departure from equal sharing provisions of that Act) the term  requires  a  degree  of  injustice  sufficient  to  require  the  Court  to intervene.

[52] In my judgment, having regard to the context in which s 88(2) appears in the statute, the Court may grant leave only if it is satisfied that refusing leave would create an injustice that the Court cannot, in conscience, countenance. In that sense, the injustice is intolerable. The need for predictability in the law of succession, so that a testator or testatrix can order his or her affairs on death, militates against a lower threshold test. (my emphasis)

[36]     Those views were reached in the context of the contemporaneous insertion of the term “serious injustice” as a threshold test in various legislation designed to enhance the rights of de facto partners.  I said:

[49] The term “serious injustice” appears to have gained support as a threshold test in recent years. The enactments in which the term appears all involve legislative changes consequent on amendment, in 2001, of the 1976

Act. The term is used in s 77B of the Administration Act 1969 (restrictions on succession on intestacy by certain de facto partners), s 70B of the Family

Proceedings Act 1980 (restrictions on maintenance orders in favour of de facto partners), s 4A of the 1955 Act (restrictions on orders in favour of

certain  de  facto  partners)  and  ss  14A  (de  facto  relationships  of  short duration), 21J (ability of Court to set aside an agreement under the 1976 Act)

and 85 (effect, on death, of marriages and de facto relationships of short duration) of the 1976 Act. There is no authority dealing with their interpretation. I add that the way in which the term is interpreted may not,

necessarily, be uniform: the context and purpose of the legislative provision will inform its interpretation in each case.

[37]     Delivering    the    judgment    of    the    Court    of    Appeal    in    Whyman,

William Young J said:

[47] We think that the “serious injustice” test can be applied directly and that there is no need to  put  a  gloss  on the  words chosen  by Parliament.  In particular, we think that Heath J went too far when he suggested that the level of injustice required to warrant leave is “intolerable”. If that is what Parliament intended, it would presumably have said that leave should only be granted if necessary to avoid “intolerable injustice”.

[48] We are also not to be taken as endorsing the result in Re Williams. We would be inclined to regard the inability to recover the award of $40,000 as having resulted in an injustice to Mrs Kinniburgh which was “serious”. In this context it is important to recognise that the “serious injustice” contemplated by s 88(2) will always (or perhaps almost always) be to a person other than the surviving spouse or partner, as a surviving spouse or partner  can  issue  proceedings  without  leave.  The  primary  reason  for allowing claims by a personal representative was, presumably, to address situations of the type presented by this case, Re Williams, and indeed the earlier case of Irvine v Public Trustee [1989] 1 NZLR 67. Accordingly, it seems sensible to apply the serious injustice test in such a way as to facilitate the making of claims in such circumstances. (my emphasis)

A more restrictive view of the term “serious injustice” was articulated in Harrison v Harrison [2005] 2 NZLR 349 (CA) at [111], in the context of s 21J of the 1976 Act, one of those provisions to which I referred in Williams at [49].

[38]     This  is  neither the time nor  the place to  question  the  test  laid  down  in

Whyman at [47]. My task is to apply it.

[39]     As  I  understand  Whyman,  it  is  necessary  for  a  first  instance  Judge  to determine whether “serious injustice” will be caused by applying those words, without any gloss.  What is or is not a “serious injustice” is likely to depend very much on impression.   Perhaps the essence of the Court of Appeal’s decision is captured in the notion that leave should be granted unless some “serious injustice” was  likely  to  flow  from  a  potential  plaintiff  being  prevented  from  bringing substantive proceedings.

[40]     It is difficult to see how leave could be refused in this case when the Court of Appeal in Whyman thought I was wrong to refuse leave in Williams. Exercising the gate-keeper  function,  I conclude  that  leave  should  be  granted  for  the  following reasons:

a)       If relationship property proceedings were brought, Mr Relph’s estate can  be  “augmented  by  a  successful  claim”,  meaning  that  the children’s right to claim under the 1955 Act is rendered economic: Whyman at [14].

b)It is not necessary for the Court to be satisfied that a claim would succeed.  Rather, the issue is whether a “serious injustice” would be caused if claimants were shut out from making a substantive claim under the 1955 Act.  There are meritorious claims made by children of modest means.

c)       The inability of the estate to pay even modest legacies of $60,000 operates in favour of granting leave.

[41]     Leave is granted, under s 88(2) of the 1976 Act.

The relationship property proceeding

[42]     I have already set out the background to the present claim.   I am satisfied that, from 1967 until Mr Relph’s death in 2007, Mr and Mrs Relph lived happily together.

[43]    In the context of a relationship of that duration, an unequal division of relationship property could not be justified.   Under s 25(1)(a) of the 1976 Act, I make an order for equal division of relationship property between the Public Trust (on behalf of Mr Relph’s estate) and Mrs Relph.

The Family Protection Act claims

[44]     Andrew, Priscilla and Rosemary each advance claims under the 1955 Act. Ms Drayton acts for all three claimants.  She advises that they do not wish to make submissions  on  the  possibility  of  unequal  awards,  though  she  accepts  that, ultimately, is a matter for my discretion.

[45]     Mrs Relph is entitled to her one-half share in the estate of her late husband, immune from any claim by Andrew, Priscilla and Rosemary.  The claims under the

1955 Act must be determined by reference to the one-half share in relationship property now vested in the Public Trust.

[46]     The principles on which an award may be made under the 1955 Act are reasonably clear.  The problem lies not in stating the principles but in applying them to the unique facts of individual cases.  Particular problems arise in cases involving second marriages or de facto relationships, due to the inevitable tensions among those who believe they are entitled to participate in distribution of the estate.

[47]     Section 4(1) of the 1955 Act states:

… if any person (in this Act referred to the deceased) dies… and in terms of his will… adequate provision is not available from his estate for the proper maintenance and support thereafter of the persons by whom, or on whose behalf application may be made under this Act… the Court may, at its discretion on application so made, order that such provision as the Court thinks fit shall be made out of the estate of the deceased for all or any of those persons.

[48]     The concepts of “proper maintenance and support” to which s 4(1) refers were  discussed  in  Williams  v  Aucutt  [2000] 2 NZLR 479 (CA) at 492-493. Richardson P, in a judgment with which other members of the Court agreed, said:

[52]   Second, for reasons which will be apparent from the earlier discussion, we reject the argument that the Court must expressly find a need for proper maintenance and support. The test is whether adequate provision has been made for the proper maintenance and support of the claimant. “Support” is an additional and wider term than “maintenance”. In using the composite expression, and requiring “proper” maintenance and support, the legislation recognises that a broader approach is required and the authorities referred to establish that moral and ethical considerations are to be taken into account in determining the scope of the duty. “Support” 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. Just what provision will constitute proper support in this latter respect is a matter of judgment in all the circumstances of the particular case. It may take the form of lifetime gifts or a bequest of family possessions precious to its members and often part of the family history. And where there is no economic need it may also 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 participation in the family estate might not amount to proper support for a family member.

[49]     The  Courts  have  developed  a  test  to  determine  whether  a  will-maker’s decision about disposition of his or her estate should be disturbed.  In Re Allardice; Allardice v Allardice (1910) 29 NZLR 959 (CA) at 973, Edwards J thought the Court should inquire whether there had been a “manifest breach of that moral duty which a just, but not loving” will-maker might owe to claimants. Those observations were made in the context of a predecessor to the 1955 Act, the Testator’s Family Maintenance Act 1900.

[50]     In Henry v Henry [2007] NZFLR 640 (CA), the concept of “moral duty” was confirmed as “too deeply embedded to be open to judicial reconsideration”: at [27], applying Re Z (Deceased) [1979] 2 NZLR 495 (CA) at 506.

[51]     Two forms of “support” were identified in Williams v Aucutt.   One was economic support, the other emotional (or psychological) support that recognised a child’s sense of “belonging” in a family.   Both are relevant factors to take into account in determining whether a will-maker has provided adequately for the qualifying claimants.

[52]     There  are  passages  in  the  affidavits  in  which  Mrs  Relph  criticises  the claimant children and they criticise her.   It has been long accepted that the Court

ought not to embark upon findings of misconduct, particularly when it is rare for deponents to be cross-examined in proceedings under the 1955 Act.  As Wild CJ said in Re Meier (Deceased) [1976] 1 NZLR 257 (SC) at 258:

Though conduct and family relationships may in some cases well have relevance I think it appropriate in this case to recall that from the early days of the family protection jurisdiction the court has disapproved attempts by litigants to blacken each other's character - See, for example, Hoffman v Hoffman (1909) 29 NZLR 425, 428, per Sim J. Allegations and counter- allegations about petty incidents which occurred years before the date of death are generally unlikely to advance anyone's case and when, as in this case, it is sought to support them by affidavits from neighbours they may merely deepen rifts in the family and dishonour the memory of the testator. Counsel and solicitors bear a responsibility to their clients as well as the court in this respect.

See also Williams v Aucutt at [71] and Auckland City Mission v Brown [2002] 2

NZLR 650 (CA) at [15].

[53]     In  determining  whether  Mr  Relph  provided  adequately  for  the  claimant children, I need to take account of their needs and compare them with the size of the estate and the moral claims of Mr Relph’s widow.   I am required to determine whether the testator breached his undoubted moral duty to his children.  If I find that he did so, I must tailor any further provision to reflect “what is necessary to make adequate provision, but to do no more than that”: see Henry v Henry at [58].

[54]     I cannot take account of any interests associated with Mr Relph’s first wife’s financial position because she is not a qualified claimant under the 1955 Act.  In law, any responsibility that Mr Relph had towards her financial wellbeing was spent on resolution of relationship property or maintenance issues between them.

[55]     I consider that Mr Relph did breach his moral duty to all three claimants. They were his children.   From a not inconsiderable estate, Mr Relph could have provided adequately for the three children and his wife.   The children are all of modest means.   Neither Priscilla nor Rosemary is in good health.   I consider that both  the  expectation  of  emotional  support  and  financial  need,  as  they  reach retirement years, justifies some provision to remedy the breach of moral duty, but only to the extent to which Henry v Henry refers, at [5].

[56]     In determining how to divide the estate, I take account of the money received by both Andrew and Priscilla from the Swiss assets.  Although I have jurisdiction only in respect of the New Zealand Will, it is necessary, in order to ensure only adequate provision is made, to have regard to assets which those two children have received from their father’s property, albeit situated overseas.

[57]     In  determining quantum,  I recognise the difficulty that  a  stranger  to  the family has in making provisions which inevitably go against intentions expressed in a Will.   I agree wholeheartedly with Wild J’s observations, in Warboys v Jones [2004] NZFLR 360 (HC) at [33], that assessment of adequate provision is not a matter of “mathematical or scientific calculation”.  There will always be a band of answers within which individual Judges make decisions on the facts of particular cases.  It is difficult to say that one award is right and another is wrong.  That is why appeals against amounts ordered are treated as appeals against the exercise of a discretion.

[58]   Although Ms Drayton had instructions not to make submissions on the possibility of unequal awards, I consider it is necessary to bring to account the benefits both Andrew and Priscilla have enjoyed from a share of proceeds of assets recovered from Switzerland.   That puts Rosemary in a worse position than her siblings and justifies, in my view, some further adjustment in her favour.

[59]     Ms Drayton annexed a schedule of assets and liabilities of the estate to her submissions.  Mr Craighead, for Mrs Relph, did not take issue with the figures.   I assess that the pool of relationship property (excluding the Krugerand) is about

$1,600,000, once unvalued assets are brought to account.  I work on the basis that the estate available for claims under the 1955 Act is approximately $800,000.

[60]     Ms Drayton submitted that Mrs Relph should not receive any money out of the estate.  She submitted that her 50% division of relationship property was “ample to meet [her] needs”.  On the other hand, Mr Craighead submitted that the financial positions of the claimant children were not sufficient to justify any more than a claim of 10% of the notional estate.

[61]     Bearing in mind the financial position of each of the three claimants, I hold that something in the region of 50%-60% of the notional estate (after taking account of existing bequests and gifts) should be divided among them to remedy the breach, taking into account the money received by Andrew and Priscilla from Swiss assets.

[62]     Leaving to one side Mrs Relph’s share of relationship property, the trustee should distribute the estate funds as follows:

a)        First, to meet all debts and costs incurred in the administration of the estate.

b)        Second, to transfer the motor vehicle to Priscilla’s husband.

c)        Third,  to  pay bequests  of  $25,000  each  (to  Timothy  and  Richard

Pappas) and $10,000 (to Mr Mehlape). d)       Fourth, to pay

i)        $120,000 to Andrew ii)  $120,000 to Priscilla

iii)      $220,000 to Rosemary.

The residue of the estate shall be distributed to Mrs Relph.

[63]     I do not propose to formulate an order under the 1955 Act at this stage. Rather, I leave it to counsel to discuss whether arrangements can be made among the parties which will enable heritage items to be retained by those who have best claim to them, consistently with the intentions expressed in paras [61] and [62] above.

[64]     If that were possible, I would be prepared to make a consent order to give effect to any arrangements.  If agreement cannot be reached, I reserve leave to apply to seek a formal order.  I would need further evidence of values of particular items

and of assets proposed to be transferred in specie, before I could make formal orders on contested issues.

Result

[65]     Leave is granted to the Public Trust to bring a substantive application under s 25(a) of the 1976 Act.

[66]     Under s 25(a) of the 1976 Act, I declare that the Public Trust and Mrs Relph are each entitled to 50% of the realised value of the relationship property pool.

[67]     I adjourn the application under the 1955 Act for further consideration.  The Registrar shall list the application for mention before me on the first available date after 9 February 2009.  I am prepared to hear from Ms Drayton by videoconference, if her clients were prepared to meet that cost.

[68]     If agreement were reached by the time of the mention hearing, I will make orders by consent.  If agreement has not been reached, I will make timetabling orders for the exchange of further evidence relevant to the precise form of the orders I should make.

[69]     As requested by the parties, I reserve questions of costs.  If they cannot be agreed, I will hear from counsel at the mention hearing.

[70]     I thank counsel for their assistance.

P R Heath J

Delivered at 2.00pm on 8 December 2008

Solicitors:
DLA Phillips Fox, PO Box 2791, Wellington
Duthie Whyte, PO Box 6444, Auckland