Reeves v McEldowney - [2023] NZHC 2511

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980.

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2023-443-17

[2023] NZHC 2511

UNDER the District Court Act 2016

IN THE MATTER

of an appeal against a decision of the Family Court at New Plymouth

BETWEEN

ST LEDGER MANNING REEVES AND JOHN CAMERON MIDDLETON

Appellants

AND

BRIAN RAYMOND MCELDOWNEY AND SHIRLEY MAVIS MCELDOWNEY

Respondents

Hearing: 4 September 2023

Appearances:

A S Butler KC for the Appellants K Pascoe for the Respondents

Judgment:

7 September 2023

JUDGMENT OF COOKE J

[1] The appellants are the executors of the estate of Dawn Patricia Kennedy (Mrs Kennedy). They appeal from the decision of the Family Court under the Law Reform (Testamentary Promises) Act 1949 (the Act) in which the Family Court ordered that Mr McEldowney should receive the sum of $300,000, and Mrs McEldowney the sum of $600,000, in addition to bequests they had received under Mrs Kennedy’s will.1 Under the will each received $100,000 plus interest from the date of the will 31 January 2013.

1 McEldowney v Reeves [2023] NZFC 519.

REEVES AND MIDDLETON v MCELDOWNEY [2023] NZHC 2511 [7 September 2023]

[2]At the time of Mrs Kennedy’s death her estate was substantial. It was worth

$6,174,714.18 before various bequests and estate expenses. She died without a family and the value of this estate is primarily to be used for the establishment of a scholarship fund known as the Duncan and Dawn Kennedy Scholarship Fund for the purpose of granting individual scholarships to any person to attending university or other tertiary education organisation to study engineering, particularly marine engineering. The scholarship fund is to last 20 years before the residue is them distributed to charities most closely resembling those identified by the will.

The facts

[3] The McEldowneys met the Kennedys in the late 1990s. Mrs McEldowney was a community nurse with Presbyterian Support Services, caring for Mrs Kennedy’s father at that time. The Kennedys looked after Mrs Kennedy’s father in his later years. Following his death in 2001, aged 101, the friendship between the Kennedys and the McEldowneys endured and they would regularly see each other.

[4] Mr and Mrs Kennedy had no children, and neither had living family. Mrs Kennedy was an only child. She was dependent on, and cared for by others — initially this was her parents, then her husband, and then the McEldowneys. The Family Court Judge described her as being old-fashioned, child-like and dependent. She also had a very old-fashioned view on the roles of men and women.

[5] In early 2012 Mr Kennedy became very ill with advanced cancer. The McEldowneys then took care of her. For example, they would take Mrs Kennedy to and from hospital to visit Duncan. This time was very difficult for Mrs Kennedy.

[6] When Mr Kennedy returned home to die the McEldowneys supported them both. Shortly before his death…

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 Reeves v McEldowney

Details

AGLC: Reeves v McEldowney [2023] NZHC 2511
Case: [2023] NZHC 2511
Decision Date: 7 September 2023

CaseChat Overview and Summary

Reeves and Middleton, the executors of the estate of Dawn Patricia Kennedy, appeal against a decision of the Family Court, which ordered that Mr and Mrs McEldowney receive $300,000 and $600,000 respectively, in addition to bequests received under Mrs Kennedy’s will. The primary issue for the Court was whether the quantum of the award by the Family Court was reasonable. The court found that the amount awarded by the Family Court was plainly excessive and set aside the amount awarded by the Family Court. The amount to be awarded was $574,250.98, plus any interest earned on this sum since it was received by the estate, less the amounts already received by the McEldowneys under the bequests under the will. This amount is awarded to the McEldowneys jointly. Leave is reserved if there is any issue in relation to quantification. In relation to costs, and following the principle articulated by the Court of Appeal in Loosley v Powell, the McEldowneys’ reasonable legal expenditure should be met by the estate for the proceedings before the Family Court and that no award of costs is necessary in the Family Court. In relation to this appeal, the appropriate position on costs may depend on whether an offer were made to the McEldowneys to resolve the proceedings. If any amount offered by the executors is less than the award then the McEldowneys reasonable legal expenditure for this appeal should be met by the estate. If an offer was made that is close to, or in excess of the amount awarded, then the appropriate outcome may be that the McEldowneys’ legal expenditure is not met by the estate but there be no award of costs against them on the appeal. If costs cannot be agreed, the court will receive memoranda (of no more than five pages plus a schedule for each party). Memoranda should be filed within 20 working days of this judgment.

Orders