Ware v Reid - [2019] NZHC 506

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2016-412-000151

[2019] NZHC 506

BETWEEN
JOCELYN DALE WARE

Plaintiff

AND

JAMES ROBERT REID AND ANTHONY JAMES HARRIS

Defendant

Hearing: 4 March 2018

Appearances:

A Logan and T M Sefton for Ms Walker

T J Shiels QC for J M Reid and G J Harris D Sim and J Pierce for Defendants

Judgment:

20 March 2019

JUDGMENT OF DUNNINGHAM J

Introduction

[1] The late William (Bill) Walker took over farming his parents’ farm, Hazeldale, in 1950. He developed it into a much admired Perendale and Cheviot stud farm. He and his wife Dorothy had four daughters. Using their accumulated assets, including assets held in family trusts, they were able to help all their daughters (and their daughters’ spouses) to become established on farms of their own.

[2] There is no real dispute that Bill and Dorothy wanted to achieve, as best they could, some equality between the four girls, even if that meant an unequal distribution in their wills to compensate for benefits that individual daughters had received during their parents’ lifetime. For example, when Bill died in December 1997 half his estate went to his daughter Helen, reflecting his view that she had received the least benefit

WARE v REID AND HARRIS [2019] NZHC 506 [20 March 2019]

to that point, while the eldest sister, Dale, received nothing, reflecting his view that she had already benefitted significantly through being able to purchase of the family farm Hazeldale on favourable terms. While this decision created some tension at the time, because Dale did not accept her father’s reasoning, she did not proceed with a threatened challenge to the will. However, when Dorothy died in February 2016, Dale, who was left only $30,000 of her mother’s estate, lodged a claim under the Family Protection Act 1955 (the Act).1

[3] Dale has now abandoned her claim in these proceedings. However, the youngest daughter, Helen, pursues her own claim under the Act. Helen received substantially less than her two middle sisters under her late mother’s will. At the date of her mother’s death, Helen’s share of the estate of $1,972,575 was $405,727, whereas the share that each of the two middle sisters would receive was $743,227. Helen says that this disparity cannot be accounted for by gifts made to her during her parents’ lifetime. She claims, in the circumstances, that her mother has breached her moral duty to treat her equally with her sisters.

[4] The issue for determination is whether, in all the circumstances, the disparity in provision for her under her mother’s will warrants the intervention of this Court under the Act.

The legal principles applying

[5] Helen’s application for greater provision from her late mother’s will is made under the Act. Section 4(1) of the Act provides as follows:

4 Claims against estate of deceased person for maintenance

(1) If any person (referred to in this Act as the deceased) dies, whether testate…

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 Ware v Reid

Details

AGLC: Ware v Reid [2019] NZHC 506
Case: [2019] NZHC 506
Decision Date: 20 March 2019

CaseChat Overview and Summary

The case of Ware v Reid involved a dispute over the distribution of the estate of Dorothy Walker, who died in February 2016. Helen Walker, one of Dorothy’s daughters, pursued a claim under the Family Protection Act 1955, arguing that the disparity in the provision for her under her mother’s will warranted intervention by the Court. The key issue was whether the disparity in provision for Helen under her mother’s will warranted the intervention of the Court under the Act. The court considered the legal principles applicable to claims under the Act, including the discretion of the Court to order provision from an estate if the deceased’s will does not make adequate provision for the proper maintenance and support of the applicant. The court also examined the Walker family history and the assistance provided to the daughters during their parents’ lifetime. The court ultimately held that the will provided adequate provision for Helen and no further provision was required under the Act. Helen’s claim was dismissed, and costs were reserved.

Orders