TB v JB

[2014] NZHC 1478

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES AND THE CHILDREN.

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2013-412-000461 [2014] NZHC 1478

BETWEEN

TRACY BLACK

Appellant (and Respondent)

AND

JOANNE BLACK, SAM BLACK, SUSY BLACK, CAITLIN WHITE and MATTHEW SMITH

First Respondents (and Appellants)

TRACY BLACK Second Respondent

Hearing:

14 April 2014

Court:

Whata and Gendall JJ

Appearances:

L A Andersen for Mrs Black (Appellant) W J Scotter for S, S and C Black

G Spry for C White and M Smith (Respondents)

Judgment:

27 June 2014

JUDGMENT OF THE COURT

Table of Contents

Para No

Introduction	[1]
Facts	[4]
- The Will	[5]
- A troubled family history	[9]
- The circumstances of Mrs Black and the claimants	[13]
Judgment of the Family Court	[19]
Jurisdiction	[37]
The claims and argument	[39]

BLACK v BLACK [2014] NZHC 1478 [27 June 2014]

- Mrs Black	[40]
- Joanne, Sam and Susy	[41]
- Caitlin and Matt	[42]
- Reply	[43]
Issues	[44]
Framework of Assessment	[47]
- Did Mr Black owe a moral duty of maintenance and/or support to his children or grandchild at the time of his death?	[54]
- Did Mr Black breach his moral duty by leaving his estate to Mrs Black?	[59]
- What is necessary to repair the breach to the children and grandchild?	[62]
Life interest	[73]
Costs Appeal	[74]
- Submissions on costs
- Joanne, Sam and Susy	[79]
- Caitlin and Matt	[83]
- Mrs Black	[84]
- Test on appeal	[85]
- Discussion
- Introduction	[89]
- Increased or indemnity costs	[91]
- Conclusion on costs appeal	[100]
Result	[101]
Costs on the appeal	[105]

Introduction

[1]      This  is  an  unusual  and  perhaps  unique  case  which  involves  a  family protection claim by natural children (and one of the grandchildren) challenging their deceased father’s will which left all his estate to his surviving spouse, the mother and grandmother of the claimants.  Unlike the frequently seen second-marriage situation where natural children challenge a parent’s will which leaves assets to a step-parent spouse, here the contest is between the biological or natural children and grandchildren and their estranged mother/grandmother.

[2]      In the usual case involving an ordinarily harmonious family situation, s 4

Family Protection Act 1955 (the Act) is not engaged where a testator has, by leaving his  estate  to  his  surviving  spouse  thereby  left  nothing  to  the  children  of  their

marriage/relationship.  But, on the quite exceptional facts of the present case, where the test as to whether a testator has breached his moral obligation to his children is clearly met, the Court is required to interfere.

[3]      These are the issues that come before this Court in the present appeal by Tracy Black (Mrs Black) against a decision in the Family Court granting in part a claim  under  the  Act  by  her  children  Sam,  Joanne,  Susy  and  Caitlin,  and  her grandchild Matthew (Matt) whereby an award of part of the residuary estate of their late   father/grandfather   Fred   Black…