Talbot v Talbot - [2016] NZHC 2382

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV-2015-476-000037 [2016] NZHC 2382

UNDER the Family Protection Act 1955

BETWEEN

JILLIAN KATE TALBOT Plaintiff

AND

GRAHAM EDWIN LAWRENCE TALBOT (AS EXECUTOR FOR THE WILL OF EDWIN KELLAND TALBOT) First Defendant

AND

GRAHAM EDWIN LAWRENCE TALBOT (AS EXECUTOR FOR THE WILL OF PAMELA LISBETH TALBOT) Second Defendant

Hearing: 30 May 2016, 31 May 2016, 19 August 2016

Appearances:

E Horner and L D Tidey for Plaintiff
A J Shaw for First and Second Defendants

J Ormsby and H T Shaw for GEL Talbot (in his personal capacity)

RLD Paul for R L Cashin

Judgment:

6 October 2016

JUDGMENT OF GENDALL J

TALBOT v TALBOT [2016] NZHC 2382 [6 October 2016]

Table of Contents

Para No

Introduction [1]

Background [8]

The parents’ wills and their estates [18]

Jillian’s position [25]

Graham’s position [27]

Rachel’s position [32]

Financial situation of Jillian [40]

Financial situation of Graham [44]

Financial situation of Rachel [48]

The approach to Family Protection Act claims [49]

Discussion [60]

The parents’ testamentary intentions [62]

Moral duty to provide proper maintenance and support [66]

Moral duty to recognise Jillian as belonging to the family [77]

Conclusion [83]

Costs [85]

Introduction

[1] This proceeding arises from a claim made by the plaintiff, Jillian Kate Talbot (Jillian), for further provision under the Family Protection Act 1955 (the Act) from the estates of her late parents.

[2] For many years dating back to around 1905, four generations of the Talbot Family have farmed property at Taiko Road, Claremont, Timaru in South Canterbury. Jillian’s parents, Edwin Kelland Talbot (Edwin) who died on
16 November 2014 and Pamela Lisbeth Talbot (Pamela) who died on 11 May 2015, both farmed the family property at certain times leading up to their deaths.

[3] Jillian has a brother, Graham Edwin Lawrence Talbot (Graham) (who is the first and second defendant in this proceeding), and a sister Rachel Louise Cashin (Rachel). All three are the surviving children of Edwin and Pamela. Graham is the sole executor of both his parents’ estates pursuant to the provisions of their last wills.

[4] Both Edwin and Pamela left wills dated 5 November 2012. Under those wills, Jillian and her sister, Rachel, are to receive from the combined estates assets which amount to almost $1.1 million each. Graham’s share from his parents’ estates totals something in excess of $4 million and he has received other significant

benefits during his parents’ lifetimes to enable him to acquire an interest in Kingsborough Farm. It is these disparities, which perhaps in reality might be seen as the nub of Jillian’s complaint here, though her claim is largely framed in other terms.

[5] Graham opposes Jillian’s claim under the Act in his personal capacity as a beneficiary of the estates.

[6] Rachel supports Graham’s position entirely. She does not herself make any claim against the estates. She maintains that the provisions of her late parents’ wills are proper and fair and they should be upheld.

[7] In essence,…

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 Talbot v Talbot

Details

AGLC: Talbot v Talbot [2016] NZHC 2382
Case: [2016] NZHC 2382
Decision Date: 6 October 2016

CaseChat Overview and Summary

The matter before the Court was an application by the plaintiff, Jillian Kate Talbot (Jillian), under section 4 of the Family Protection Act 1955, to compel her parents' executors to make provision for her from their estates. Jillian sought a redistribution of the estates of her late parents, Edwin and Pamela, to address what she considered to be an inadequate provision for her proper maintenance and support, and for her parents' failure to recognise her as a member of the family. The parents' wills provided for Graham, the plaintiff's brother, to inherit the family farm and for Jillian and her sister, Rachel, to each receive nearly $1.1 million from the estates. The Court was required to decide whether the parents had fulfilled their moral duty under section 4 of the Act. After considering the evidence and submissions, the Court concluded that Jillian had not established a breach of moral duty on the part of her parents. The Court held that Jillian's parents had fulfilled their moral duty to provide proper maintenance and support for her, given her financial position and economic needs, and to recognise her as belonging to the family. The Court also rejected Jillian's argument that her parents had failed to properly consider the impact of their intended dispositions on their children. The Court found that the parents' testamentary intentions were clear, and that they had taken advice specific to their testamentary intentions over a decade at least. The Court held that it was not open to it to effectively alter the terms of the wills to balance lifetime provisions which had benefitted Graham against the testamentary provisions made for Jillian. The plaintiff's application was dismissed, and costs were reserved.

Orders