Waine v Tigg
[2018] NZHC 1976
•9 August 2018
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CIV 2017-442-0056
[2018] NZHC 1976
UNDER Section 124 District Court Act 2016 IN THE MATTER
of an appeal from a judgment of the Family Court
BETWEEN
DAVID WAINE AND STEVEN WAINE
Appellants
AND
HELEN TIGG AND KEITH PARKER
First Respondents
ROSS HANNAY MCKECHNIE, DAVID WAINE AND CELIA JANE SMITH
Second Respondents
Hearing: 6 March 2018 Appearances:
G M Downing for Appellants
A M Halloran and Y E Clarisse for Respondents G J Praat for Trustees and Executors
Judgment:
9 August 2018
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 9 August 2018 at 2.30 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date: ...................................
Solicitors:McFadden McMeeken Phillips, Nelson Pitt & Moore, Nelson
Copy for: Knapps Lawyers, Richmond
WAINE v TIGG [2018] NZHC 1976 [9 August 2018]
Introduction
[1] This is an appeal against a decision of Judge R J Russell in the Family Court at Nelson on 15 August 2017.1
[2] The Judge determined an application by Mr Keith Parker and Ms Helen Tigg (“Keith” and “Helen” or the “claimants”) for provision from the estate of their father,
Mr James Parker.2
[3] Mr Parker died on 31 March 2014, leaving nothing to Keith or Helen in his will. Rather, subject to some specific bequests, Mr Parker left his residuary estate to his nephews, Mr David Waine and Mr Steven Waine (“beneficiaries”), in equal shares.
[4] At the time of the hearing before the Judge, the net value of Mr Parker’s estate was $643,283.69. The Judge determined that, at the date of his death, Mr Parker had a moral duty, or obligation, to make adequate provision for the proper maintenance and support of Keith and Helen, and that he had failed to do so. The Judge ordered that provision of $100,000 should be made from the estate for Helen in recognition of her need for support, and $175,000 for Keith as provision for his support and maintenance, meaning the beneficiaries would receive approximately $368,000.
[5] There is no dispute on appeal that Mr Parker owed a moral duty to make provision for Keith and Helen’s proper maintenance and support.
[6] The principal issues on appeal are the quantum of the awards and, as regards Keith, whether there was sufficient evidence to establish a need to make provision for his proper maintenance.
[7] The beneficiaries contend that the Judge should have made an award to recognise the need for support only and that such award should not have exceeded 8 to 10 per cent of the estate, say, up to $64,300.
1 Tigg v McKechnie [2017] NZFC 6342.
2 The application was made pursuant to s 4 Family Protection Act 1955.
[8] Counsel for Keith and Helen, Ms Halloran, submitted that the Judge’s decision was correct. She submitted that Keith’s evidence was sufficient to establish that he was in financial need and that the quantum of an award is not to be varied on appeal unless shown to be “plainly wrong”. In making this latter submission, Ms Halloran was referring to the Court of Appeal’s decision in Henry v Henry and its reference to an earlier statement in Little v Angus:3
[24] ... “on an appeal the Court will not substitute its discretion for that of the Judge at first instance unless there be made out some reasonably plain ground upon which the order should be varied”.
[9] I agree with Ms Halloran this statement governs consideration of the quantum of the awards but not whether the evidence of financial need that Keith adduced was sufficient to enable a determination that provision was required. The sufficiency of that evidence is not a matter within the discretion of the Court but one requiring a fresh assessment by the Court on appeal.
Background
[10] The facts found by the Judge are summarised below. The Judge determined these on affidavits sworn by Keith and Helen and their brother Neil; Mr Parker’s sister, Mrs Beryl Waine; and the beneficiaries. There was no cross-examination, there having been no application for such, and no interrogatories.
[11] Mr Parker and the claimants’ mother, Anne Parker, married in England in September 1960. Keith was born in December 1960 and Helen in March 1964. Mrs Parker subsequently had two other sons, James and Neil. James was never a party to these proceedings. Neil discontinued his application for provision when it became apparent that Mr Parker was not his father.
[12]Mr and Mrs Parker separated in early 1968.
3 Henry v Henry [2007] NZCA 42, [2007] NZFLR 640 citing Little v Angus [1981] 1 NZLR 126 (CA).
Mr Parker
[13] Mr Parker left England in 1969, when Keith was eight and Helen four. Mr Parker did not see, and was not in contact with, his children again for some 45 years, until in 2014 he exchanged letters with Helen after she had located him.
[14] As it turned out, after a lengthy period travelling abroad, Mr Parker had settled in Nelson in 1976 where he established first a hairdressing business and, later, a company manufacturing and selling furniture. Mr Parker sold this business after a heart attack in his early 50s.
[15] Mr Parker’s parents, and Mrs Waine, her husband and her two sons – the beneficiaries – relocated to Nelson shortly after Mr Parker had settled there. Mr Parker married twice subsequently. Although these marriages did not endure, he and Mrs Waine enjoyed a close family relationship. Mr Parker was clearly fond of both of the beneficiaries, and they of him. Their evidence is that Mr Parker was always on hand to help and advise them and that he was generous to them in every respect.
Mrs Parker
[16] After the separation, Mrs Parker remained with her four children in a home she and Mr Parker had purchased in 1964 (“family home”). Mrs Parker did not remarry.
[17] Mrs Parker was in receipt of a benefit whilst the children were dependent and struggled to make ends meet. Mr Parker did not pay any maintenance for the children, even though subject to a Court order that he do so.
[18] The beneficiaries dispute the Judge’s determination that Mr Parker did not pay any maintenance. This dispute is based on statements that Mr Parker made to Mrs Waine to the effect that he had left funds behind in England for the maintenance of his children.
[19] Of course, Mr Parker may have said this to Mrs Waine but the reality seems to have been different. The evidence for the claimants was that Mrs Parker “was dependent on welfare benefits and financial assistance from her parents and her
brother”; that she “struggled financially”; that Mr Parker left the family “penniless” and made life hard by “not being there and even harder by leaving [the family] in such poverty”; that the family “had to survive on benefits which ran very thin at the best of times”; that the family survived “on a pittance, supported by welfare”; that “simple things were not affordable”; and that the family “could never afford to go on trips out or a holiday”.4
[20] In 1979, the Court vested the family home in Mrs Parker. By this time, the debt against the property had been almost entirely repaid. The Judge proceeded on the basis that Mr Parker had not been paid any money for his interest in the property, but also accepted that the bulk of the reduction in the debt had been made post separation and without any financial contribution from Mr Parker.
[21] Both Keith and Helen tried to locate Mr Parker. Keith tried unsuccessfully in the early 1990s.5 Helen tried, also without success, through the Salvation Army “about 20 years ago”.6 She tried again in 2012 or 2013, through “Genes Reunited”. This search was successful, although Mr Parker initially declined contact. He then changed his mind. The letters Mr Parker and Helen exchanged in 2014 were in evidence and on the Judge’s view of it evidenced disinterest on Mr Parker’s part. Helen discovered that Mr Parker had died following an internet search, when she had not heard from him.
[22] The Judge had reservations about a submission for the beneficiaries that Keith and Helen would inherit from Mrs Parker’s estate. Mrs Parker now has dementia, was unable to file evidence, and the cost of rest home care, if required, may be charged against her assets, including the family home. The Judge was correct to take this view, for the reasons he gave. And, of course, as cases under the Family Protection Act show, a child’s expectations of inheritance from a parent are often disappointed. It would be unwise to set much store by them.
4 Affidavit of H Tigg sworn 2 September 2015 at [16]; Affidavit of K Parker sworn 2 September 2015 at [13] and [14]; and affidavit of N Parker sworn 2 September 2015 at [4] and [6].
5 Affidavit of K Parker, above n 4, at [11].
6 Affidavit of H Tigg, above n 4, at [12].
Applicants’ circumstances
[23] At the time of the hearing before the Judge (mid 2017), Helen was 53 or thereabouts, married with one stepson and two grandchildren, and employed as a dispensing optician. Her gross income for the financial year to 2015 was £27,659.38, net approximately £22,000; she expected a similar income in the following financial year; and she had modest savings.
[24] Helen and her husband owned a home as tenants in common in equal shares. Equity in the home at April 2016 was approximately £250,000, of which Helen’s share would be approximately £125,000. Helen’s expectation was that her husband would leave his half share to his son. Helen also predicted that she and her husband would not have repaid the debt secured against the home for another 12 years, when her husband would be in his late 70s.
[25] Keith was in his mid-50s at the time of the hearing, had no children, and had been declared bankrupt following his divorce. The Judge determined that Keith’s position was “more precarious” than Helen’s. Keith’s evidence was that he had various health problems, including difficulties with sensation in his left hand; damage to his groin; rheumatism in both hips; required a hip replacement within the next few years; had an incurable problem with his liver and pancreas; and had diabetes.
[26] Keith’s gross income in the financial year ended 2015 derived from a job delivering pharmaceuticals, was £16,866.82 (approximately £14,500 net), and he expected that it would be similar in the financial year ended 2016. He typically worked 50 to 60 hours a week and had £3,250 in savings. Keith and an uncle had purchased a residential property and a parcel of land which they had intended to develop. However, Keith’s health and market conditions now ruled that out. An independent firm valued the properties at £80,000 and £40,000 respectively. Keith’s evidence was that his uncle contributed £135,000 to the acquisition of these properties and that he would have to repay “part” of his uncle’s money. In addition, as of late July 2015, a debt of £31,611.37 to a building society was secured against the development site, with Keith making the repayments due.
Findings
[27] The Judge determined a wise and just testator in Mr Parker’s position would have made provision for Keith and Helen. This was because Mr Parker had been solely responsible for his estrangement from his children; because he had not supported them, financially or emotionally, since they were young; and because they had suffered as a result. Given the absence of any provision in the will, the Judge was satisfied that Mr Parker had breached his duty to his children.
[28] These findings by the Judge – that Mr Parker had a moral duty to make provision for Keith and Helen and that he had failed to discharge that duty – were not challenged on appeal. And nor could they be, as they were plainly correct.
[29]The question then became what was required to remedy the breach.
[30] The Judge reminded himself of the well-established principles that govern awards under s 4, being that there is no presumption of equality of treatment; that unfairness on its own is insufficient to justify an award; that the Court must not be overly generous nor unduly niggardly with the deceased’s property; that it is not for a beneficiary to justify his or her interest in the estate; and that the Court is to disturb the will to the least extent possible and have regard to the deceased’s wishes as far as possible.
[31] The Judge then said his awards to remedy the breaches would reflect Keith and Helen’s financial, personal and health circumstances; the role they played in Mr Parker’s life and, if none, the reason for that; the size of Mr Parker’s estate – neither large nor small; and Mr Parker’s wishes. The Judge rejected as too niggardly Mr Downing’s proposal of 10 per cent of the estate to each of Helen and Keith; and as too generous Ms Halloran’s proposed $250,000 to Keith and $150,000 to Helen.
[32] The Judge said that a wise and just testator would have recognised that he had been wrong to abandon his children and not to contact them, that he should remedy the same and that, in the absence of a surviving spouse, Mr Parker’s primary duty was to the children “he had neglected for most of his adult life”. The Judge said he accepted Mr Downing’s submission that Keith and Helen had not played a part in
Mr Parker’s life but said this was not for the want of their trying to do so. It was thus not a case in which a child had failed to provide familial support to their parent. The Judge also referred to Hardie Boys J’s decision in Crosswell v Jenkins.7 In that case, the Judge recognised that a consequence of estrangement is a much reduced relationship between parent and child but, equally, that the need to make amends is compelling if the estrangement is of the deceased’s making. Hardie Boys J said:
... The claim of a child from whom the deceased has had a long estrangement cannot be as strong as that of one with whom he has had a close relationship. On the other hand where the estrangement is of the deceased’s making, either because he has actively brought it about, or because he has not exercised his particular ability and responsibility to heal it, the need and the moral duty are compelling. What the deceased has failed to do in his lifetime to accord recognition to his own family he ought to do in his will. And if he does not the Court ought to do it for him ...
[33] The Judge considered Helen to be in a “reasonably sound” position financially and health wise, and that she did not require maintenance from Mr Parker. However, an award to Helen was appropriate to “recognise her unvalued role as a child of the testator and because of the lack of paternal support provided to her during the testator’s lifetime”.8 The Judge concluded that the sum of $100,000 would not be “unduly generous nor niggardly” and he noted that this would fall within the percentage range of familial support and recognition claims identified in Ormsby v van Selm, to which I refer below.9
[34] As to Keith, the Judge said his circumstances required an award for both maintenance and support. An award for support was justified “for the same reasons” as in Helen’s case but that an additional sum for maintenance was warranted because of Keith’s “poor health, difficult financial position and uncertain ability to earn future income because of his health”.10 The Judge settled on $175,000 for both. The Judge did not say that $100,000 of this sum was for support. He expressed it as I have said.
7 Crosswell v Jenkins (1985) 3 NZFLR 570 (HC); and Tigg v McKechnie, above n 1, at [91].
8 Tigg v McKechnie, above n 1, at [93].
9 Ormsby v van Selm [2015] NZHC 2822.
10 Tigg v McKechnie, above n 1, at [94].
Paternity
[35] I have already referred to the fact that Neil Parker discontinued his claim for provision when it became apparent that Mr Parker was not his biological father. It is apparent from the documents before me that the beneficiaries put the claimants to proof on this issue. I do not propose to address the various submissions that Mr Downing made to me that Mr Parker must have been in doubt on the point. Ms Halloran’s submissions are to the effect that the issue was resolved in Keith and Helen’s favour. Certainly the Judge must have been satisfied or he could not have made the awards he did. I add that there is no evidence Mr Parker himself harboured any doubts and there is no hint of any doubt in his letters to Helen.
Issues on appeal
Sufficiency of evidence
[36] The first issue to be addressed on appeal is whether the evidence before the Court was sufficient to allow a finding that Keith was in need of provision for his maintenance. If the beneficiaries are correct, then Keith would receive an award to recognise a need for support only.
[37] Mr Downing was critical of Keith’s evidence as to both his state of health and his financial position.
[38] Mr Downing submitted that the evidence was “vague”; that Keith had not provided evidence of any serious health issue or that he was likely to require expensive medical treatment. Mr Downing submitted that supporting reports from medical specialists would be required before the Court could accept that Keith’s state of health was a matter to take into account.
[39] Mr Downing also submitted that the evidence of Keith’s financial position was deficient, and he was particularly critical of Keith’s evidence as to the debt said to be due to his uncle.
[40] Mr Downing also referred to discrepancies in Keith’s evidence. For instance, in his first affidavit of 2 September 2015, Keith said he had no savings. In a later
affidavit of 4 April 2016, Keith said he had savings of £3,250. There were differences in his estimates of the hours he worked. No explanation was given for these differences.
[41] Despite these submissions, I consider the evidence before the Court was sufficient to establish a need for maintenance.
[42] First, there is no general principle that a deponent’s evidence must be corroborated by other evidence.11 Evidence as to ill-health or financial matters is no exception.
[43] Secondly, the differences to which I have referred in [40] above are not significant. I acknowledge that the lack of information about the debt is important but even if the debt is left to one side, Keith’s present financial position is far from secure.
[44] Thirdly, I should refer to the process by which the claimants’ affidavits came to be filed.
[45] Keith and Helen swore their first affidavits in September 2015. The focus of these affidavits was their upbringing and the consequences of Mr Parker’s absence in their lives. Keith included in his affidavit an account of his medical complaints, and both referred to their financial affairs.
[46] At a conference before Judge G F Ellis in December 2015, Mr Downing put Keith and Helen on notice that their evidence of their financial position was inadequate and that led the Judge to order Keith and Helen to make fuller disclosure of that position.12
[47] In compliance with this order, Keith and Helen swore further affidavits in April 2016. Keith annexed to his affidavit bank statements, the equivalent of PAYE forms showing his earnings, and a statement issued by the building society in respect of the debt secured against the development site. The only financial matter not corroborated
11 Hodge M Malek (ed) Phipson on evidence (19th ed Sweet & Maxwell, London, 2018) at [14-01].
12 Minute of Judge G F Ellis dated 10 December 2015.
is the extent of the debt due to the uncle. The beneficiaries also wished to have independent valuations of Keith and Helen’s properties and these were also supplied, at the expense of the estate.
[48] The extent of the liability due to the uncle should have been clarified. But taken as a whole, I am satisfied that Keith’s affidavits are sufficient to establish a need for maintenance. The Judge’s description of Keith’s financial position as “precarious” is apt, debt or no debt.
[49] I have also referred to the fact that there was no application to cross-examine Keith or Helen. Cross-examination is not unheard of in family protection matters. In the absence of such a challenge to Keith’s evidence, it was open to the Court to accept it. Accordingly, I do not accept this first ground of appeal.
[50]There are two other points to mention.
[51] First, Mr Downing referred me to statements that counsel then appearing for Keith and Helen made at a judicial conference before Judge Russell on 1 June 2016. These statements were to the effect that the claim was “based primarily on [the need for] support ...”.13 I asked Mr Downing whether he was submitting that the Judge erred in allowing Ms Halloran to advance a case at trial in support of provision for maintenance. Mr Downing replied that he could not “take it that far”. Given that acknowledgement, I have not addressed the point.
[52] Secondly, Mr Downing submitted that any breach of moral duty falls to be assessed at the date of the testator’s death and on the basis of what was known to the testator at the time and circumstances that might reasonably have then been foreseen. From this, Mr Downing submitted that there was no evidence that Mr Parker had any information as to Keith’s circumstances. However, Mr Parker’s ignorance was a matter for which he alone was responsible. This point is addressed in passages cited at [3.2] of Law of Family Protection and Testamentary Promises, one of which is that:14
13 Minute of Judge R J Russell dated 1 June 2016 at [6] and [10].
14 W M Patterson Law of Family Protection and Testamentary Promises (4th ed, LexisNexis, Wellington, 2013) at [3.2].
... it is the hypothetical testator, endowed with wisdom and justice and aware of all that there was to know at the time when the testator died leaving his will to operate, whose moral duty affords a test by which the Court may decide whether any and if so what provision would have had to be made by the actual testator’s will ...
Quantum
[53] This brings me to the second principal issue on appeal, being whether the quantum of the awards was “plainly wrong”. Mr Downing submitted that the Judge had rewritten Mr Parker’s will; had failed to take into account the absence of any meaningful relationship between parent and child; and had failed to take a “principled conservative” approach in determining the awards.
[54] I do not propose to address each of these points individually. The critical question on appeal is whether the Judge awarded more than the sum necessary to remedy the breach of moral duty.
[55] Having considered the evidence, all of the authorities to which counsel referred me, and counsel’s submissions, I am not satisfied either award was plainly wrong. These are my reasons.
[56] First, as the Judge said, Mr Parker’s primary duty was to make provision for his children. This duty took priority over any duty he may have had to his nephews.15
[57] Secondly, provision must be neither unduly generous nor niggardly. A broad judicial discretion is to be exercised in the particular circumstances of each case having regard to factors identified in the authorities.16
[58] Thirdly, this estate was neither large nor small. Most importantly, it was not beset by applications from others with a moral claim against the testator. Nor was there evidence of the beneficiaries’ financial position, meaning that the Judge was entitled to proceed on the basis they did not require maintenance or support.17
15 See also Fisher v Kirby [2012] NZCA 310, [2013] NZFLR 463 at [125].
16 At [120].
17 At [131]
[59] Fourthly, Helen may not have made out a claim for financial need but her circumstances could only be described as modest. Keith’s were worse.
[60] Fifthly, neither award seems out of step with those made in the comparable cases to which the parties referred me. I turn to these now.
Comparable cases
[61] First, Mr Downing referred me to Moon v Carlin.18 The testator, Mr Sommerville, left his four adult children legacies of $25,000 each and his residuary estate to Mrs Moon. Mrs Moon was also the beneficiary of a substantial inter vivos settlement by Mr Sommerville.
[62] Mr Sommerville and the children’s mother had separated when the children were aged between four and 15. There was little contact between Mr Sommerville and the children thereafter.
[63] Each child made out strong claims for support and maintenance. In the Family Court, Judge P Whitehead awarded the four children, jointly, 75 per cent of the estate. This constituted provision of approximately $145,000 each. Woodhouse J dismissed Mrs Moon’s appeal against this award.
[64] Both parties referred me to the litigation in Ormsby v van Selm.19 By Mrs Ormsby’s will, her son was to receive approximately $2.6 million and her two daughters approximately $91,000 each.
[65] The daughters, both dutiful despite an appalling upbringing and both in significant financial need, brought a claim. The Family Court ordered that the three children should share equally.
18 Moon v Carlin HC Auckland CIV-2010-404-5486, 23 February 2011.
19 Ormsby v van Selm, above n 9.
[66] On the son’s appeal, Katz J reduced the award to 30 per cent for one daughter and 25 per cent for the other, being $790,000 and $674,000. The Court of Appeal refused the son leave for a further appeal.20
[67] Although the facts of the Ormsby case are very different from the present, it is relevant because of Katz J’s comments on the quantum of awards for support apparent on a review of earlier authorities. Katz J referred to a decision in which the Court of Appeal described an award for support of less than 10 per cent as “relatively modest” and to others which the Judge considered evidenced awards for support alone in the range of 10 to 20 per cent of the estate.21
[68] Mr Downing also referred me to the Court of Appeal decision in Fisher v Kirby, an appeal from Clifford J’s decision in Kirby v Sims.22
[69] Again, the estate was a large one at $3.8 million. The testatrix, Irma Murray, had made only very modest provision for her children, leaving the bulk of her estate to her nieces and nephew by marriage.
[70] Clifford J awarded Mrs Murray’s daughter $750,000, one son $600,000 and another son AU$350,000,
[71] The nieces and nephews, and the sons, challenged the awards made. The Court of Appeal upheld the awards made by Clifford J, subject to increasing the AU$350,000 to AU$500,000.
[72] Another case is Brady v Goudie, being one to which Woodhouse J referred in Moon v Carlin.23 Mr Brady’s estate was valued at approximately $400,000. After payment of specific legacies, the daughter of the testator’s second marriage (Dr Brady) was to receive assets to a value of about $300,000. The surviving daughter of the testator’s first marriage, Ms Goudie, received nothing and she sought provision. The testator and Ms Goudie’s mother had separated when Ms Goudie was young, and the
20 Ormsby v van Selm [2016] NZCA 323.
21 Williams v Aucutt [2000] 2 NZLR 479 (CA); and Ormsby v van Selm, above n 9, at [45].
22 Fisher v Kirby, above n 15; and Kirby v Sims HC Wellington CIV-2010-485-794, 22 August 2011.
23 Brady v Goudie HC Hamilton CIV-2009-419-469, 20 August 2009.
two – father and daughter – were estranged, Ms Goudie being aggrieved “about the circumstances in which her father left her mother and the devastating effect that that had on her”.24
[73] Neither Dr Brady nor Ms Goudie was in financial need. It was purely a case of making provision for Ms Goudie’s proper support, so as to give proper recognition to her as a member of the testator’s family. The Family Court awarded Ms Goudie
$60,000. Heath J dismissed Dr Brady’s appeal and, in doing so, referred to the statement of Hardie Boys J quoted above, to the effect that if a testator fails to recognise his family in his will, the Court ought to do it for him. In so far as concerns quantum, Heath J said the award was at the upper end of the available range but not “plainly wrong”.25
[74] Lastly, Mr Downing referred me to the Court of Appeal’s decision in Flathaug v Weaver as authority for the proposition that the duty of a parent to a child with whom he or she has not shared a lifetime relationship is of a “lesser order” than otherwise would be the case.26 Clearly in the present case there was no lifetime relationship either.
[75] The facts of that case are again quite different to the present. Although Mr Flathaug was the claimant’s father, by agreement of all concerned she was brought up entirely by her mother and her mother’s husband, with their other children. The claimant learnt that Mr Flathaug was her biological father when she was in her mid-20s, following which they established a very harmonious relationship. Mr Flathaug made modest inter vivos gifts to the claimant but made no provision for her in his will. Rather, Mr Flathaug’s estate went to a family trust for his and his wife’s adult children. The claimant was not a beneficiary.
[76] The Court of Appeal reduced the High Court’s award from $90,000 to $40,000, but this case is not authority for the proposition Mr Downing sought to advance. That is because the Court of Appeal described Mr Flathaug’s decision to play no part in the
24 At [5] and [6].
25 At [39].
26 Flathaug v Weaver [2003] NZFLR 730 (CA) at [41].
claimant’s life as “an act of enlightened forbearance, not of neglect”.27 That statement, to which Mr Downing did not refer me, distinguishes the case from the present.
[77] Coming back to the issue I have to decide, I am not persuaded that the award to Helen was plainly wrong, given the deprivation visited on the claimants after Mr and Mrs Parker’s separation, the size of the estate and the lack of competing moral claims. The award accords with the principles the Court of Appeal has identified as governing remedy and, as I have said, is not out of step with the awards in the cases to which I was referred.
[78] I have found the award to Keith more difficult, particularly because the Judge did not identify why he had settled on the particular sum of $175,000. However, the size of an award requires an exercise of judgment and, again, I am not persuaded that it was plainly wrong. The factors to which I have just referred in the previous paragraph, coupled with Keith’s age, very modest earnings and assets, and the lack of any real prospect of improvement in the same, put the award within the available range.
[79]It is for these reasons that I dismiss this ground of appeal also.
Final matter
[80] As long ago as June 2016, Judge Russell informed counsel for all parties that it was not appropriate for Mr David Waine to continue as an executor and trustee of Mr Parker’s estate, because his position as a beneficiary gave rise to a conflict of interest. That advice was not heeded and it should have been. A person who is not impartial is not capable of fulfilling his or her duties as an executor or a trustee. Impartiality is critical to beneficiaries, claimants, and to the Court. The Judge’s advice should have been communicated to Mr Waine and his retirement should have followed.
Conclusion
[81]I dismiss this appeal for the reasons above.
27 At [33].
[82] The appellants must pay the respondents’ costs on a 2B basis, with all reasonable disbursements.
[83]There is leave to apply if necessary.
Peters J
0
3
0