Tombs v Macassey

[2003] NZCA 437

IN THE COURT OF APPEAL OF NEW ZEALAND

CA174/02

BETWEEN  JOHN HENDERSON TOMBS Appellant

ANDROGER NORMAN MACASSEY Respondent

Hearing:         11 June 2003

Coram:           Blanchard J Panckhurst J O'Regan J

Appearances: F B Barton and S M Grieve for Appellant

A D G Hitchcock for statutory beneficiaries

Judgment:      18 June 2003

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

[1]      John Tombs brought a claim under the Law Reform (Testamentary Promises Act) 1949 against the estate of Arch Browne in unusual circumstances.   The respondent, Mr Macassey, is the executor and trustee of the estate and abides the decision of the Court.   Arch Browne and his wife Jean Browne were an elderly couple who lived at Mosgiel but farmed, with the help of paid staff, three properties at Palmerston and one at Milton.  Three of the properties were registered in his name and one in hers.

[2]      Arch Brown had no close blood relatives.   Nobody can make any claim against his estate under the Family Protection Act 1955.   Jean Browne’s closest blood  relatives  were  her  sister  Marjorie  and  Marjorie’s  son,  the  appellant, John Tombs.  Arch Browne was 81.  His health was not as good as his wife’s.   It

must  have  appeared  very  likely  that  he  would  die  first.    But  the  unexpected

JOHN HENDERSON TOMBS V ROGER NORMAN MACASSEY CA CA174/02 [18 June 2003]

happened.   Jean had predeceased him by 15 days when he died on 10 November

2000.

[3]      Jean Browne left all her estate, other than some jewellery and personal effects and a $5,000 legacy, to her nephew, John Tombs.   Arch Browne’s will, made in

1994, was entirely in favour of his wife and made no provision for what was to happen if she did not survive him and so could not inherit.  The consequence is that under the Administration Act 1969 Arch Browne’s estate falls to be divided between the living descendants of the siblings of his parents.   There are some 33 statutory beneficiaries, some of whom live in Ireland.

[4]      Both estates were sizeable but, because of the way the titles to the farms had been registered, Arch’s was the larger, despite the fact that the farming ventures were in reality conducted jointly.  Mr Macassey was also the executor and trustee of Jean’s estate.  In that capacity, he brought a claim under the Matrimonial Property Act 1963 against Arch’s estate.  It was heard at the same time as John’s testamentary promise claim and another testamentary promise claim against that estate by Sandra King, whose mother was a cousin of Arch  Brown.   Sandra  King was  awarded

$25,000 in the High Court and there is no appeal from that award.

[5]      Nor  is  there  an  appeal  from  the  order  made  by  the  High  Court  on  the matrimonial  property  claim  which  William  Young  J,  correctly,  decided  before dealing with the testamentary promises claims.  It had been agreed on all sides that Jean was entitled to at least 50% of the properties.  The Judge decided that was the share which her estate should receive.

[6]      According  to  an  updating  affidavit  of  Mr  Macassey,  using  values  at

31 October 2002, that has resulted in just under $500,000 in value being transferred from Arch’s estate to Jean’s estate.  The balance of her estate is now a little over

$1,050,000.  The balance of Arch’s estate (before any testamentary promises award to John) is a little over $1,100,000.

[7]      Now we come to John’s testamentary promises claim.  The facts as set out in the High Court judgment are not in dispute.  John Tombs was born in 1967.   His

father died when he was nine.   From that time on Arch Browne assumed a semi- paternal role in his life.   John lived with the Brownes for a year when he was attending secondary school. The close association continued after he became an adult.  He is a farmer and manages a property at Middlemarch owned either by his mother or a family trust associated with her.

[8]      William Young J found that the evidence pointed strongly to the conclusion that there was an understanding that John Tombs would receive a substantial portion of the assets owned by Arch and Jean Browne after they had both died.  But he said that in part this expectation simply reflected the family dynamics.   “It was always likely that Jean Browne would leave the bulk of her estate to John Tombs.  At all times Arch Browne intended to leave his entire estate to his wife”.  The Judge had no doubt that they both articulated this expectation in their dealings with John Tombs, “albeit in general terms”.  He referred to evidence of John being told by his uncle and aunt, “we’ll see you right” and other discussions with Arch Browne which, as the Judge said, in context implied that the farms were destined for him.   But the Judge  said  that  expectations  based  on  family  dynamics  of  this  nature  did  not establish a testamentary promise claim.

[9]      There were, however, the Judge found, statements made by Arch Browne relating to services provided to him and his wife by John Tombs which the Judge considered were sufficient to bring the case within the scope of the Law Reform (Testamentary Promises) Act.   The services primarily consisted of farm work on their properties during the last 15 years or so of their lives.  John worked two to three weeks a  year during this 15  year period for no  remuneration.   He was usually accompanied  by  his  mother,  Marjorie,  who  also  worked.    The  assistance  was rendered when Brownes’ farm workers were away on holiday and thus saved the Brownes the expense of finding paid temporary help.  The work was of a strenuous nature.   Arch and Jean were appreciative of it.   The promises made to John were found by the Judge to have a connection with these services.

[10]     With some hesitation William Young J concluded that there was a shortfall between what was promised and what had been provided.  He was of the view that Arch Browne had made statements which could fairly be taken as indicating to

John Tombs that the eventual provision for him would be “more generous than a little less than a half share in the combined estates of Arch and Jean Browne”.  As well, the Judge found, the promises made by Arch Browne “implied that he would contribute to what was to be left to John Tombs”.   Those promises were not “completely mopped up by the testamentary provision made for John Tombs by Jean Browne”.  A top up from Arch Browne’s estate of the amount John Tombs was entitled to receive from Jean’s estate was required.   That top up was referable, generally, to the services provided which were, in turn, primarily the two to three weeks work a year over the last 15 years of Arch Browne’s life but which also, the Judge  said,  included  assistance  with  transportation  and  other  general  assistance which must from time to time have been provided.  He recognised, however, that to the extent that the services were of benefit to Jean Browne they had been well and truly rewarded by the provision which she had made for John Tombs in her will.

[11]     Having regard to these factors, the Judge awarded John Tombs the sum of

$100,000 under the Law Reform (Testamentary Promises) Act.

[12]     On this appeal John Tombs contends that that award was inadequate.  On his behalf Mr Barton emphasised the connection the Judge had found between Arch Brown’s remarks to John Tombs about his testamentary intention and the services rendered by John Tombs.   It was submitted that the Judge had placed too much importance on the fact that the events took place within a family situation; that the promises were not just part of a family dynamic.   The services were said to have been ongoing and regular and the promises repeatedly made.   The services were clearly valued by Mr Browne.  They provided, in counsel’s words, “huge comfort” to him.   There was also an intangible benefit to him from the friendship he enjoyed with John Tombs.  Counsel drew attention to the distances from Middlemarch to the various farms and the amount of travelling time which would have been involved in performing the services.

[13]     It was submitted that the Judge should have looked at the claim on Arch Browne’s  estate  separately  from  the  disposition  under  Jean  Browne’s  estate. Mr Barton said that because Arch Brown could make promises only in respect of his own estate, the effect of his promises was that all or a large part of his estate would

be left to John Tombs.  The disposition made by his wife should not be taken to be a reward for John Tombs’ services to Arch Browne.  Notwithstanding this submission, Mr Barton also argued that the award was low in comparison with the value of the promises which, in this part of his argument, he said were related to the combined estates.  The value of the promises was high.  One hundred thousand dollars is only a very small proportion of the combined estates and, indeed, of Arch Browne’s estate alone.

[14]     Mr Barton also pointed out the lack of any moral claims by the statutory beneficiaries.  John Tombs is not competing with any testamentary intention.  The nature  of  their  claims  is  a  matter  which  s3  of  the  Act  expressly  mentions  as something which can be taken into account (“the nature and amounts of the claims of other persons in respect of the estate”).

[15]     Counsel said that in view of the size of  the  estate,  a  liberal  award  was justified.

[16]     For  the  statutory beneficiaries,  Mr  Hitchcock  pointed  out  that  this  is  an appeal against an exercise of discretion on the part of the Judge.  It must be shown that the Judge was plainly wrong before his decision can be disturbed.  Mr Hitchcock said that the assets to which the promise is related belonged to both of the Brownes and were intertwined.   The promises themselves were made by Arch Browne on behalf of his wife and himself.   Thus the promises related to what would happen with both estates.  The promises actually found to have been made by the Judge were said to have been no more than that John Tombs would receive a substantial portion of Arch and Jean Browne’s estates.  The promises were not very definite and in large measure, counsel said, related to an expectation that, as her closest family member, in due course John Tombs would inherit the estates through Jean.  The assurances given by the Brownes were said to be more related to this than to John’s services. Those services themselves were relatively modest – two or three weeks farm work each year for 15 years.  They were not essential services for the Brownes, who could have employed a temporary farm worker.  Mr Hitchcock drew attention to the fact that in the Privy Council in Re Welch [1990] 3 NZLR 1 at 8, although the comment

had been made that a liberal approach is fitting, especially when there are no competing moral claims, the Privy Council had also said:

Some sympathy must be felt for the appellant, who has not received his full expectations; but by no means has he gone away empty-handed.  It is of the essence of the jurisdiction under the Law Reform (Testamentary Promises) Act 1949 that an award must be not more than reasonable recompense for services or work for the deceased.

It was submitted that the value of the services had been well recognised by the award of $100,000 made by the Judge.

[17]     We find ourselves in agreement with the submissions made by Mr Hitchcock and need add little to the summary of his submissions just given.  The assessment of an appropriate award for a testamentary promise, particularly one which is relatively vaguely expressed in circumstances in which the expectation of benefit under a will also appears to have derived in a large measure from a family relationship, is far from an exact science.  Where the estate is a large one the discretion in monetary terms is correspondingly larger.

[18]     Contrary to Mr Barton’s submission, we consider that the promises made by Arch Browne were clearly made on behalf of himself and his wife.  It follows that in considering whether there has been a failure by Arch Browne to fulfil the promises, account must be taken of the fact that John Tombs has received virtually the whole of Jean Browne’s substantial estate.   The family relationship and the promises, in combination, have led John Tombs justifiably to anticipate that he would receive the greater part of the combined estates.  But, in valuing the promises for the purposes of the Act, account must be taken of the  fact that they were not made  wholly in response to the performance of the services.   Account must also be taken of the nature and  extent  of  the  services  themselves  which,  though  certainly not  to  be minimised, were for quite short periods each year.  In an economic sense they are well recognised by the award of $100,000, particularly when John Tombs has also received approximately $1 million under his aunt’s will.

[19]     In the end, we have not been persuaded that the Judge was plainly wrong in the  exercise  of  his  discretion.     It  is,  from  the  appellant’s  perspective,  most

unfortunate that Arch Browne’s will was not revised after his wife’s death and that most of his estate will now pass to comparatively distant relatives, with some of whom he is unlikely ever to have had any contact.  But, even weighing in favour of John Tombs the factor that, because of their nature, the competing moral claims of the statutory beneficiaries are weak, we can see no proper basis for disturbing the award made by the Judge.

[20]     The appeal is accordingly dismissed.  In the circumstances, and as the appeal was put forward upon an arguable basis, there will be no award of costs in this Court.

Solicitors:

Anderson Lloyd Caudwell, Dunedin for Appellant

Ross Dowling Marquet Griffin, Dunedin for Respondent

AWS Legal Invercargill, Dunedin for Respondent