Teresa Hedgeman v Rosemarie Frances Driver

[2022] NZHC 3356

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-001489

[2022] NZHC 3356

UNDER

Family Protection Act 1955

IN THE MATTER OF

The estate of ROBINA GWENDOLYN BUCKINGHAM

BETWEEN

ALICE TERESA HEDGEMAN

Plaintiff

AND

ROSEMARIE FRANCES DRIVER

Defendant

Hearing:	5 December 2022
Appearances:	N G Lawrence for Plaintiff
Judgment:	12 December 2022

JUDGMENT OF ANDREW J

[Formal Proof]

This judgment was delivered by Justice Andrew on 12 December 2022 at 1.00 pm

pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar

Date ………………………….

HEDGEMAN v DRIVER [2022] NZHC 3356 [12 December 2022]

Introduction

[1]        These are proceedings under the Family Protection 19551 relating to the estate of the late Robina Buckingham.2

[2]        The plaintiff, Alice, is the daughter of Robina. Under the terms of her 2015 will, Robina left the substantial residue of her estate to her two great-nephews, who live in the UK and have never met Robina. No provision at all was made for Alice and in the case of her other surviving sister, Geraldine, she receives a very limited life interest out of their mother’s estate.

[3]        Both Alice and Geraldine have serious medical issues and economic needs. Alice says that the terms of the will are a manifest breach of the moral duty owed to them by their mother, Robina. She also says there are no competing moral claims to the estate.

[4]        Geraldine, the only other interested party to respond to the proceedings, supports Alice’s position. Rosemarie Driver, the executor of the estate, abides the Court’s decision. All other interested parties have been served, including the great- nephews, but have not responded. This proceeding accordingly proceeded by way of formal proof.

[5]        The value of the estate is approximately $580,000 (essentially the proceeds of sale of Robina’s house). The critical issue I must determine is whether the whole of the estate should be left to Alice and Geraldine with no provision being made for the current beneficiaries, namely the great-nephews.

Factual background

[6]        Alice and Geraldine are 65 and 58 years old respectively. Their other sister, Jacqueline, passed away in January 2022. She had no children.

1      FPA 1955.

2      For ease of reference, I will refer to the parties by their first names.

[7]        Geraldine is both mentally and physically disabled. She suffers from lateral familial sclerosis, muscular dystrophy and severe mental health issues. She currently lives in the Glenburn Home care home which provides hospital-level care to her. She is permanently wheelchair-bound and her health is deteriorating. Geraldine has been in and out of care homes and mental institutions her whole life. She has required institutionalisation at Auckland’s acute mental health hospital, Te Whetu Tawera, on occasion.

[8]        Alice lives on her pension of $925 per fortnight. She lives in a small 1920s railway cottage in Taumarunui. She has three children, being the only grandchildren of the deceased.

[9]        Alice has rheumatoid arthritis and fibromyalgia which impact her mobility in a major way. She also broke her shoulder in 2020, following which she has had complications. She also has limited function in her right forearm and wrist for which she recently underwent surgery.

[10]      As explained by Alice in her affidavits, she and her siblings grew up in government housing in Owairaka and Mount Roskill. Their childhood was challenging and complicated both because of their father’s significant disability and Robina’s severe mental health issues. Their father was disabled from birth with a rare form of sclerosis which saw him wheelchair-bound by his 50s. Both Jacqueline and Geraldine were also born with disabilities. Jacqueline was severely handicapped, had cerebral palsy and was unable to communicate verbally.

[11]Alice also survived cerebral and spinal meningitis in the first years of her life.

[12]      In her affidavit, Alice explains how she slept in a bed on the back porch as a child and would have to climb over items her mother, Robina, was hoarding, in order to get to her bed. She also explains how Robina spoke of ending all of their lives to her children and on more than one occasion asked Alice to take pills with her in order to commit suicide.

[13]      As the oldest child and the only one in the family without disability, Alice was required to look after her family from a young age. As a result of her depression, Robina spent a lot of time in bed in the early 1970s and Alice was required to look after and to provide daily care to her. That care was in addition to looking after her two disabled sisters.

[14]      As a young woman, Alice was forced on many occasions to take leave from work in order to be at home to look after her family members. When she was no longer able to do so she was asked by Robina to leave the family home and to make her own way without any family contact for the next few years of her life. Despite that, Alice maintained contact with her two sisters.

[15]      Alice had her first daughter, Nina, during this time. She made her own way in the world without help from her mother or father.

[16]      After Robina’s second husband passed away in 2013, Marianne Snell, Alice’s aunt and Robina’s sister, began to look after Robina. In her evidence, which is unchallenged, Alice explains how Marianne essentially acted as Robina’s “gatekeeper”.

[17]      Alice says that Robina’s will, being the will at issue,3 reflects the influence of Marianne. Under that will:

(a)No provision is made for Alice at all;

(b)Jacqueline and Geraldine are given only a life interest in the income of the estate (the estate is yet to earn an income and to date nothing has been paid to Jacqueline or Geraldine); and

(c)Everything else is left to the two grandsons of Marianne (i.e. Robina’s great-nephews), who live in the UK and whom it appears Robina had never met and did not know.

3      Dated 14 August 2015.

The beneficiaries of the estate

[18]      Robina’s two great-nephews, William and Matthew Hartell, are approximately 11 and nine years old. They live with their mother and father in the UK. Nicolette, their mother, is Robina’s niece and Marianne Snell’s daughter. William and Matthew are only two of more than 30 great-nephews and nieces that Robina had.

[19]      There is no evidence before the Court as to why Robina made provision in her will for William and Matthew. Furthermore, there is no evidence as to their current financial, or other, circumstances.

The current economic circumstances of Alice and Geraldine

[20]      Alice says that she has limited financial means. She sold her house in West Auckland four years ago and moved to Taumarunui to be mortgage-free. She has a Kiwisaver worth about $15,000, savings of about $8,000 and approximately $13,000 in an everyday account. As noted above, she lives on her pension.

[21]      Her cottage requires substantial work to bring it up to a standard required for healthy living and to meet her own medical needs.

[22]      Alice’s daughter, Daena, is ill with cancer. She lives in Perth and Alice wishes to fly to see her as soon as she is medically fit to fly. That will be a significant expense for Alice.

[23]      Geraldine is completely financially dependent on the state and on her sister, Alice. She lives on a WINZ benefit of $110.58 per week. Out of that WINZ payment she must pay for toiletries, medication, the hairdresser, dentist, podiatrist, and any treats etc.

[24]Geraldine has cash in the bank for emergencies in the sum of $7,432.05.

Robina’s death

[25]Robina died on 20 January 2020. Probate was granted on 9 July 2020.

[26]      In her affidavit, Geraldine explains how, when Robina passed away, she and Jacqueline made all the arrangements for Robina’s funeral because Marianne, their aunt, could not be contacted. Marianne did subsequently become involved.

[27]      Alice and Geraldine looked after Jacqueline after Robina passed away. Jacqueline continued to live in a rest home until she passed away in January 2022.

Relevant legal principles

[28]      The concept of the testator’s “moral duty” to adequately provide for the proper maintenance and support of family members has long been a basic guiding principle to the Court in the exercise of its discretion when hearing claims under the FPA 1955:4

The concept of the testator’s moral duty to adequately provide for the proper maintenance and support of a limited class of relatives is elementary to the administration of the Family Protection Act 1955.

[29]      The following passage from Laws of New Zealand summarises the Court’s task as follows:5

The court must place itself in the position of the testator and consider whether or not, having regard to all the existing facts and surrounding circumstances, the testator has been guilty of a manifest breach of the moral duty that a just, but not a loving … parent owes towards the … children. The courts apply the standard of a wise and just testator. Such a testator must weigh moral claims in a large sense, in which regard is had not only to economic needs but also to the merits and deserts of dependents, and assess corresponding obligations towards them after having regard to his or her means. The standard is an objective one and is influenced by current social attitudes which may change from time to time. The testator is imputed with the knowledge of all the circumstances existing or reasonably foreseeable at the time of death. The “wise and just” test requires that a testator not be influenced by acts of eligible claimants to such an extent that their needs cannot be properly appreciated.

Under the Family Protection Act 1955 a claimant’s behaviour may be such as to disentitle the claimant from relief. Even though a court might take the view that a will is most unjust from a moral point of view, that alone is not sufficient to enable the court to alter the testator’s disposition of property. The court may not alter the testator’s dispositions beyond what is necessary to repair a breach of moral duty, which is tested at the testator’s death.

4      W Atkin and W M Patterson Laws of New Zealand Family Protection and Other Family Property Arrangements (online ed, LexisNexis) at [10]; referring to Re Z (deceased) [1979] 2 NZLR 495 (CA) at 506; Little v Angus [1981] 1 NZLR 126 (CA).

5      Laws of New Zealand, above n 4, at [10] (footnotes omitted).

[30]      The modern approach is to assess moral duty against a variety of factors. They include:6

(a)the economic needs of the applicant;

(b)the size of the estate;

(c)other moral claims to the estate; and

(d)the relationship between the applicant and the testator.

Analysis and decision

[31]      As the Court of Appeal held in Flathaug v Weaver,7 the relationship of parent and child has primacy in our society. The Court noted that the Family Protection Act 1955 recognises that a parent’s obligation to provide for both the emotional and material needs of his or her children is an ongoing one.

[32]      On the basis of the clear and unchallenged evidence before me, I find that there has been a manifest and egregious breach of moral duty by the deceased, Robina, in failing to make any provision at all for her daughter, Alice. I also find that the very modest provision made for Geraldine was manifestly inadequate and also in breach of her moral duty. The circumstances of this case are obviously tragic and possibly unique. The clear breach of moral duty is apparent from the following factors:

(a)The mental anguish and hardship suffered by both Alice and Geraldine at the hands of their mother, Robina, as a result of her depression and significant mental health issues.

(b)The manner in which Alice cared for and looked after Robina, as well as her sisters, as a young woman and also later in life.

6      Vincent v Lewis [2006] NZFLR 812 (HC) at [81]; Laws of New Zealand, above n 4, at [10].

7      Flathaug v Weaver [2003] NZFLR 730 (CA) at [32].

(c)The severe mental and physical ailments and disabilities which Alice, Geraldine and Alice’s children suffer from (and before her death, Jacqueline suffered from).

(d)The support that Alice has and is providing to Geraldine, as well as the support provided to Jacqueline before her death.

(e)The current difficult financial circumstances which Alice and Geraldine find themselves in. This includes significant financial demands for their ongoing medical issues.

(f)That any leftover funds will ultimately be distributed (in the event of success) to Alice’s children and grandchildren, who are Robina’s only grandchildren and great-grandchildren.

[33]      In the circumstances, where no provision at all was made for Alice and very limited provision was made for Geraldine, with the bulk of the estate going to two relatively distant relations with whom she had no contact, the breach of duty was a very serious one. In applying the standard, namely the objective standard of a wise and just testator, the claim of a manifest breach of moral duty is clearly made out.

[34]      I turn now to address the critical issue of whether, as sought, the whole of the estate should be left to Alice and Geraldine, with no provision at all for the current beneficiaries, the great-nephews.

[35]In Kirby v Sims,8 Clifford J held as follows:

The significance of such claims would appear to be that, where a plaintiff in Family Protection proceedings establishes a breach of moral duty and the beneficiaries of the estate have no competing moral claim, the Court will not hesitate to reduce awards to such beneficiaries to the extent necessary to remedy the breach of moral duty. Where, however, beneficiaries have competing moral claims, questions of distributative justice will arise.

8      Kirby v Sims HC Wellington CIV-2010-485-794, 22 August 2011, at [96].

[36]      In the case of children with a disability, the nature of the disability will influence the type of order that might be appropriate in a FPA 1955 claim.9

[37]      There is very little evidence before the Court in this case on the current circumstances, including the financial circumstances, of the two great-nephews. The evidence establishes that Robina had no contact with them, and it seems likely that she had never met them. They are two of some 30 great-nieces and nephews that Robina had. On the evidence before me, the likely and only reason they were provided for in Robina’s will is because they are the grandchildren of Marianne Snell.

[38]      I agree with the submission of Mr Lawrence that the great-nephews do not have any competing moral claims. I find that there are compelling circumstances supporting a finding that a just and wise testator in Robina’s position would have left the whole of her estate to her three daughters (given that Jacqueline has now passed away, there are only two remaining). The size of the estate is relatively modest and, in the circumstances, a full award of the estate to Alice and Geraldine is warranted. The award should also reflect the egregious nature of the breach of moral duty that I have identified. The following factors are also important:

(a)Alice and Geraldine are Robina’s daughters. Although there have been periods of estrangement, there were obviously strong parental/child bonds.

(b)Alice and Geraldine (and previously Jacqueline) have serious need for financial assistance given their very modest living circumstances, and medical and mental health issues.

(c)As noted above, the great-nephews, William and Matthew Hartell, are strangers to Robina.

(d)The neglected and difficult upbringing which Robina subjected Alice and Geraldine to requires recognition.

9      W M Patterson (ed) Law of Family Protection and Testamentary Promises (4th ed, LexisNexis, Wellington, 2013) at 155.

(e)Robina’s only grandchildren and great-grandchildren were born to Alice and will benefit through Alice from any gift to Alice (and possibly Geraldine too, given that she has no children of her own).

(f)It appears that Robina’s will was drafted at a time when she was vulnerable, being “controlled” by Marianne and was not allowed to see any of her other family.

[39]In Montgomerie v Public Trust,10 the deceased left a small estate of around

$125,000 to charities, but no provision was made for either of his two sons. He was found to have breached his moral duty to the sons and the estate was split between them. No provision was made for the charities given the size of the estate.

[40]      While the great-nephews may not be in the same position as a charity (they are relatives of the deceased), that decision does provide support for my conclusion that the whole of the estate here should be awarded to Alice and Geraldine.

Result

[41]      The plaintiff, Alice, has established a manifest breach of moral duty by her mother, Robina, in failing to make any provision for her in her will of 2015. The limited provision in that will for Geraldine was also a manifest breach of moral duty.

[42]I make the following orders:

(a)Robina’s estate is to be left half each to Alice and Geraldine;

(b)The costs of this application (indemnity costs) are to be paid for out of the estate’s funds subject to the Court’s approval as to the quantum.

Andrew J

10     Montgomerie v Public Trust HC Christchurch CIV-2007-409-001081, 17 August 2007.