Scott v Garnham - [2021] NZHC 592

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-99

[2021] NZHC 592

UNDER the Family Protection Act 1955

IN THE MATTER

of the estate of the late Mary Patricia Scott- Smith

BETWEEN

JAZZ SCOTT

Appellant

AND

MICHAEL ROBERT GARNHAM

Respondent

Hearing: 22 February 2021

Appearances:

S J Zindel for Appellant M R Garnham in Person K L Hoult for A Scott

Judgment:

23 March 2021

JUDGMENT OF COOKE J

[1] Ms Jazz Scott appeals against the decision of the Family Court in which she was awarded 10 per cent of her mother’s estate in response to her claims under the Family Protection Act 1955 (the Act).1 In essence she contends the amount awarded is insufficient, and that it should be increased.

Background

[2] The relevant facts are not set out in detail in Judge Grace’s decision. To some extent that is understandable given that it was accepted that the testator had breached her moral duties to Jazz, and the only issue to be determined by him was the quantum

1 Scott v Garnham [2020] NZFC 678.

SCOTT v GARNHAM [2021] NZHC 592 [23 March 2021]

of the award that should be made. As the Judge recognised, however he had to first be satisfied that there was a breach of a moral duty under s 4 of the Act before determining quantum, and he duly did so.2

[3] I have supplemented the Family Court Judge’s factual findings with facts that are evident from the evidence filed in that Court, particularly the evidence of the executor Mr Michael Garnham. I understand that Mr Garnham sought to provide impartial evidence on the relevant circumstances. Mr Garnham’s firm acted for the deceased, including in preparing various wills which I explain below, and Mr Garnham is now the executor with the agreement of the parties.

[4] Jazz is one of three children. A notable feature of the circumstances of this case is that her brother, Mr Paul Scott appears to have taken advantage of his mother while she was alive. The size of her estate has been substantially depleted as a result of events which took place during her life to the financial benefit of Paul and his wife. Paul has played no part in the proceedings. Their mother died on 28 February 2015 leaving a will dated 22 October 2009. The sole beneficiary under that will is Jazz’s sister Ms Ann Scott. Ann accepts that their mother breached her moral duty to Jazz and has been prepared to consent to her receiving 10 per cent of the estate. That was the amount that the Family Court Judge ordered.

[5] As the Judge recorded the deceased could at times be difficult and there were examples at various times of both of the daughters being estranged from her.3 There were also periods of time when the deceased lived with Paul and during that time her savings disappeared, a mortgage was registered against her home and Paul…

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 Scott v Garnham

Details

AGLC: Scott v Garnham [2021] NZHC 592
Case: [2021] NZHC 592
Decision Date: 23 March 2021

CaseChat Overview and Summary

Scott v Garnham is an appeal against a Family Court decision awarding Jazz Scott 10 per cent of her mother's estate, following claims under the Family Protection Act 1955. The appeal was dismissed. Jazz, one of three children, claims the amount awarded is insufficient. The court found that the deceased had breached her moral duties to Jazz by manipulating her affairs in an irrational way and favouring one child over another. However, because Jazz was not in financial need and her sister had also suffered from the misconduct of the brother, the court held the award was appropriate. The court found that there was no basis to suggest the sister was involved in the brother's misconduct.

Orders