Smith v Endean - [2022] NZHC 583

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-401-2214

[2022] NZHC 583

UNDER the Family Protection Act 1955

IN THE MATTER

of the Estate of George Clifford Smith

BETWEEN

JOCELYN LOIS SMITH

Applicant

AND

WILLIAM ARTHUR ENDEAN

Respondent

Hearing: 14 March 2022

Appearances:

R Amaranathan for the Applicant WE Andrews for the Respondent

SR Carey for Widvey grandchildren (as Interested Parties)

Judgment:

28 March 2022

JUDGMENT OF FITZGERALD J

[Application to file proceedings under Family Protection Act 1955 out of time]

This judgment was delivered by me on 28 March 2022 at 3.00pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Rice Craig, Auckland To: W Andrews, Auckland
S Carey, Auckland

SMITH v ENDEAN [2022] NZHC 583 [28 March 2022]

Introduction

[1] The applicant, Mrs Smith, is the widow of George Clifford Smith (who I will refer to in this judgment as Mr Smith). Mr Smith died on 9 August 2019, leaving a will dated 2 August 2019.

[2] The respondent, Mr Endean, is the executor and trustee of Mr Smith’s estate. He is also the sole trustee of a trust established by Mr Smith in 2016 (the Trust).

[3] Mr Smith’s will made no provision for Mrs Smith. Rather, the residue of Mr Smith’s estate was left entirely to the Trust.

[4] Mr and Mrs Smith had been together for 60 years. They had been in a de facto relationship from 1959 and married in April 1981. There are five children of the marriage and 11 grandchildren.

[5] For at least four years prior to Mr Smith’s death (and potentially longer), the relationship between the couple had been dysfunctional. In 2014 they had essentially separated. Indeed, from that time, the parties had been negotiating the division of their relationship property, though that had not been resolved by the time of Mr Smith’s death. Despite these circumstances, they both remained living in the family home, in which they had lived for the previous 45 years (the Property). The Property had originally been owned by Mr and Mrs Smith as joint tenants. In 2014, this was changed to ownership as tenants in common in equal shares.1 While the division of relationship property had not been finalised prior to Mr Smith’s death, it seemed to be common ground that the Property would be sold and the sale proceeds divided equally.

[6] Probate was granted in relation Mr Smith’s will on 30 June 2020. Mrs Smith was therefore required to bring any application under the Family Protection Act 1955 (the Act) within 12 months of that date, namely by 30 June 2021.2

1 See further below at [13].
2 Family Protection Act 1955, s 9(2)(b).

[7] Mrs Smith did not do so, filing her application on 5 November 2021. She was therefore some 18 weeks out of time. She accordingly seeks leave to apply out of time. If leave is granted, the primary relief Mrs Smith will seek…

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 Smith v Endean

Details

AGLC: Smith v Endean [2022] NZHC 583
Case: [2022] NZHC 583
Decision Date: 28 March 2022

CaseChat Overview and Summary

The High Court of New Zealand was asked to decide whether Mrs Smith, the widow of George Clifford Smith, could apply out of time for maintenance and/or support from her late husband's estate under the Family Protection Act 1955. Mrs Smith filed her application 18 weeks late and sought leave to do so. The executor of the estate, Mr Endean, opposed the application, as did two of the grandchildren. The court considered the relevant legal principles, which included the length of the delay, the explanation for the delay, the strength of the claim, and the extent of any prejudicial effect on beneficiaries. The court found that Mrs Smith's explanation for the delay was somewhat unconvincing, but that she had some merit in her claim that Mr Smith had breached his moral duty to her. The court also found that there would be no prejudice to the beneficiaries if leave was granted. The court granted Mrs Smith's application and ordered a case management conference to schedule the proceeding. The court also noted that it would be in all parties' interests to avoid unnecessary legal costs.

Orders