Thurston v Thurston - [2014] NZHC 2267

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-7833 [2014] NZHC 2267

IN THE MATTER
of the Estate of GRAEME NIGEL

THURSTON

UNDER

Part 18 of the High Court Rules and the
Family Protection Act 1955

BETWEEN

LYALL GRAEME THURSTON, SIMON GRAEME THURSTON, OLIVER JOHN THURSTON and CHRISTIAN JAMES THURSTON

Plaintiffs

AND

COLLEEN ELIZA THURSTON, BRIDGET GORINSKI and JOHN STEPHEN BURRETT as executors of the Estate of GRAEME NIGEL THURSTON Defendants

Hearing: 12 - 16 May 2014

Appearances:

VT Bruton and DM Urmson for Lyall Thurston as plaintiff in the Family Protection proceeding and for Lyall Thurston and the grandchildren as parties served in the Property (Relationships) Act proceeding

WM Patterson for the grandchildren as plaintiffs in the Family
Protection proceeding
P McKendrick for the executors and trustees in the Family
Protection proceeding

AH Waalkens QC and VJ Knell for Colleen Thurston as cross- claimant in the Family Protection proceeding and as applicant in the Property (Relationships) Act proceeding

Judgment:

18 September 2014

JUDGMENT OF TOOGOOD J

THURSTON v THURSTON [2014] NZHC 2267 [18 September 2014]

CIV-2012-404-4529

IN THE MATTER of the Property (Relationships) Act 1976
BETWEEN COLLEEN ELIZA THURSTON Applicant
ANDCOLLEEN ELIZA THURSTON, BRIDGET GORINSKI and JOHN STEPHEN BURRETT, in their capacity as executors of the Estate of GRAEME NIGEL THURSTON
Respondents

ANDLYALL GRAEME THURSTON, SIMON GRAEME THURSTON, OLIVER JOHN THURSTON and CHRISTIAN JAMES THURSTON
Parties Served

This judgment was delivered by me on 18 September 2014 at 2:00 pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar

Table of Contents Paragraph

Number

Introduction [1]

Assets held by the family trust and in the estate [3]

Contracting out agreement dated 29 January 2002 [4]

The provisions made for the claimants under the TF Trust
and under Graeme’s will

[6]

The issues arising from the claims by the parties [8] Colleen’s challenges to the contracting out agreement [10] The FPA claims by Colleen, Lyall and the grandsons [13]

Graeme Thurston’s family [14]

Esther Muriel Thurston [15] Lyall Graeme Thurston [17] Colleen Eliza Thurston [20] Simon Graeme Thurston [24] Oliver John Thurston [25] Christian James Thurston [26]

The nature of the evidence [28] Colleen’s application to set aside the election of Option B [31] The contracting out agreement under s 21 PRA [35] The preparation of the contracting out agreement [36]
The allocation of separate property [39]

The arrangements to apply while Graeme and Colleen were living together as a couple

What was to happen under the agreement if Graeme and Colleen separated

[42]

[43]

What was to happen if Graeme died before Colleen [45]

Is the contracting out agreement void? [48]

Allegation that Colleen was not advised on the effect and implications of the agreement

[49]

Application of Coxhead v Coxhead principles [55]

If necessary, declaration giving effect to agreement would be made under s 21H of the PRA

[61]

Table of Contents Paragraph

Number

Would giving effect to the contracting out agreement cause serious injustice?

Allegations of an unfair disparity and misstatement of asset values

Claims for…

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 Thurston v Thurston

Details

AGLC: Thurston v Thurston [2014] NZHC 2267
Case: [2014] NZHC 2267
Decision Date: 18 September 2014

CaseChat Overview and Summary

In the case of Thurston v Thurston, the High Court of New Zealand ruled on claims by various family members under the Family Protection Act 1955 and the Property (Relationships) Act 1976. The deceased, Graeme Thurston, left an estate valued at over $12 million, with additional assets held in the Thurston Family Trust. The Court examined a contracting out agreement signed by Graeme and his wife, Colleen, in 2002, which outlined the division of their property in the event of separation or Graeme's death. The primary issues were whether the agreement was valid and whether Colleen's election under the PRA should be set aside.

The Court found that the contracting out agreement was not void, despite Colleen's claims that she did not receive adequate legal advice. The agreement was deemed to have met the formal requirements of the PRA, and the Court was satisfied that Colleen understood the effect and implications of the agreement. Furthermore, the Court found that enforcing the agreement would not cause serious injustice to Colleen. As a result, the Court declined Colleen's application to set aside the contracting out agreement.

Regarding the FPA claims, the Court determined that further provision should be made from Graeme's estate to adequately provide for the maintenance and support of Lyall, Simon, Oliver, Christian, and Colleen. The Court ordered additional payments to be made to Lyall, Simon, Oliver, and Christian from Graeme's estate and directed that Colleen would not be required to leave any property she received under the terms of the will to the Thurston Family Trust.

In summary, the Court dismissed Colleen's applications under the PRA and ordered additional payments to be made to the family members under the FPA. The Court also reserved leave for further submissions regarding the implementation of the orders and allowed parties to apply for costs.

Orders