Talbot v Talbot

The Court of Appeal of New Zealand considered two appeals from a decision of Gendall J in the High Court at Timaru. The first appeal, CA557/2016, was brought under the Family Protection Act 1955 by Jillian Kate Talbot (Jillian), who sought further provision from the estates of her late parents, Edwin Talbot (Edwin) and Pamela Lisbeth Talbot (Pamela). The second appeal, CA278/2017, related to costs. Jillian sought to challenge the order requiring her to pay indemnity costs to Rachel Louise Cashin (Rachel). Graham Edwin Lawrence Talbot (Graham) was the executor of both estates and opposed Jillian's application. The primary issues were whether adequate provision had been made for Jillian's proper maintenance and support, and if the trial judge had correctly determined that adequate provision had been made. The secondary issues were whether the trial judge applied the correct criteria in exercising his discretion to award costs on an indemnity basis, and if the quantum of costs was reasonable.

The Court held that the threshold issue of whether there had been a breach of the moral duty set out in s 4 of the Family Protection Act 1955 was a matter of law, fact, and degree, and appeals involving this issue fall to be determined by reference to the approach set out in Austin, Nichols & Co Inc v Stichting Lodestar. If a breach of moral duty was found, then what remedy should be granted by the court below was an issue involving the exercise of a discretion. The Court found that there had been no breach of duty by either Edwin or Pamela to Jillian, and that they made adequate provision for Jillian's proper maintenance and support in their respective wills. The Court dismissed Jillian's appeal in CA557/2016. In relation to the costs appeal, CA278/2017, the Court found that the trial judge applied the correct criteria in exercising his discretion to award costs on an indemnity basis, and that the quantum of costs was reasonable. The Court dismissed Jillian's appeal in CA278/2017. Jillian was ordered to pay Graham's costs on a band A basis and usual disbursements on appeal CA557/2016, and Rachel's costs on a band A basis and usual disbursements on appeal CA278/2017. The estate was not represented, and no costs were awarded in favour of either the first or second respondents.