Tolhopf v Rauner - [2025] NZHC 311

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-2283

[2025] NZHC 311

BETWEEN
CORALIE GAIL TOLHOPF

Appellant

AND

LANCE ANTON RAUNER, IAN FREDERICK RAUNER and SHEREE ANNETTE RAUNER

First Respondent

LANCE ANTON RAUNER and CORALIE GAIL TOLHOPF

Second Respondent

Hearing: 25 February 2025

Appearances:

P J Kennelly for Appellant M Crawford for Respondent

Judgment:

26 February 2025

JUDGMENT OF VENNING J

This judgment was delivered by me on 26 February 2025 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Kennelly Law, Orewa
Insight Legal, Warkworth

TOLHOPF v RAUNER [2025] NZHC 311 [26 February 2025]

Introduction

[1] Fredrick Rauner (Fred) died on 28 March 2022. At the time he was 92. He left an estate of approximately $1,810,000, which included his home at Lakeside Drive, Orewa.

[2] Fred and his wife Glenis (who had died in October 1999) had four children: Coralie, Lance, Ian and Sheree. Fred left his home and chattels worth approximately
$1,250,000 in total to Coralie. He divided the residuary estate of approximately
$560,000 between his three other children, Lance, Ian and Sheree, although in unequal shares. Lance, Ian and Sheree challenged Fred’s will and sought further provision under the Family Protection Act 1955 (the Act). They argued Fred’s estate should be divided equally between the four children.

[3] In a judgment delivered on the 9th of August 2024, Judge S M Morrison allowed the claims of Ian and Sheree.1 She increased the provision for Ian to $336,000 to match Lance’s share of the residue, and increased Sheree’s share to $536,000.

[4]Coralie appeals to this Court from that decision.

The Family Court judgment

[5] In her decision Judge Morrison briefly referred to the law, then summarised the parties’ financial positions and their cases.

[6] While acknowledging Coralie may have received benefits in the arrangement which saw her looking after Fred, the Judge accepted Fred placed value on being able to grow old at home and to continue living there rather than being placed into residential care. That also maintained the estate for all children. However, the Judge also observed that Fred’s wish to provide Coralie with a home did not trump any moral duty owed to the other children.

[7] Judge Morrison ultimately concluded that the $336,000 Fred had provided for Lance was sufficient to meet his needs and properly acknowledged his belonging to

1 Rauner v Rauner [2024] NZFC 10273.

the family. She did not consider there was any breach of Fred’s moral duty to provide for Lance.

[8] However, she considered that in relation to Ian and Sheree, Fred’s will appeared to have been based on misinformation about the children’s respective circumstances and his legal obligation to ensure there was no breach of any moral duty owed to them upon his death.

[9] In relation to Ian, the Judge considered there appeared to be no reason for Ian to be treated unequally to Lance other than the…

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 Tolhopf v Rauner

Details

AGLC: Tolhopf v Rauner [2025] NZHC 311
Case: [2025] NZHC 311
Decision Date: 26 February 2025

CaseChat Overview and Summary

Coralie Gail Tolhopf appeals against a decision of the Family Court, which found Fred Rauner breached his moral duty to two of his children, Ian Frederick Rauner and Sheree Annette Rauner, under the Family Protection Act 1955 by providing unequal shares in his will. Coralie’s appeal challenges the findings of the Family Court that Fred had breached his moral duty to Ian and Sheree and that the Judge’s adjustments to the provisions of Fred’s will were appropriate. The appeal also challenges the amount awarded to Sheree. The court considered the evidence provided by the parties and the applicable legal principles, particularly the approach to be taken in evaluating claims under the Act. The court found that the Family Court had erred in its application of the principles and that the award to Sheree was excessive. The court allowed the appeal in part, setting aside the award to Ian and reducing the award to Sheree to $336,000, the same amount awarded to Lance.

The court began by outlining the background and the Family Court’s decision, which increased the provision for Ian to $336,000 and for Sheree to $536,000. Coralie’s appeal focused on the Family Court’s findings regarding the breach of moral duty and the appropriateness of the adjustments. The court considered Fred’s reasons for his dispositions, the evidence of the children’s circumstances, and the principles governing claims under the Act. The court found that the Family Court had not applied the established principles correctly and had effectively rewritten Fred’s will on fairness grounds, which is impermissible. The court held that Fred had not breached his moral duty to Ian, but had breached it towards Sheree due to her health condition and lack of capital assets. However, the court found the award to Sheree to be excessive and set it at $336,000, the same amount awarded to Lance. The court reserved the issue of costs but indicated a likely outcome where all parties bear their own costs, with the respondents receiving their respective awards without deduction.

Orders