Wilkinson v Wilkinson - [2019] NZHC 1729

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2016-419-257

[2019] NZHC 1729

IN THE MATTER The Family Protection Act 1955

IN THE MATTER

of the Estate of William Louis Wilkinson, deceased

BETWEEN

PATRICIA MARY WILKINSON

Plaintiff

AND

DAVID WILLIAM WILKINSON and

JOHN DUNCAN LANDERS as Executors of the Estate of William Louis Wilkinson, deceased

Defendants

[CONTINUED OVER]

Hearing (telephone
conference):

11 and 12 July 2019

Appearances:

A Gilchrist for the Plaintiff in 227 and Patricia Wilkinson in 257 S Robertson QC for the Plaintiffs in 227

P Stevenson for the Estate of Barbara Ann Wilkinson in 227, 257 and 71
D O’Neill for David Wilkinson in 227 and 257 and Pauline Wilkinson in 227

C Murray Earl for Neville Wilkinson in 227 and 257 J Niemand for Richard Wilkinson in 227 and 257

S A Grant for Henry Bell and Declan Bell in 227 and 257 S Jefferson QC for Daniel Wilkinson and James Wilkinson K Bond for Chyloe Wilkinson in 227, 257 and 71

R Clark for the Executors of the Estate of William Louis Wilkinson in 257

Ann Frances Wilkinson in 227 and 257

Judgment:

26 July 2019

JUDGMENT OF POWELL J

WILKINSON v WILKINSON [2019] NZHC 1729 [26 July 2019]

CIV-2018-419-227

IN THE MATTER of the Trustee Act 1956

BETWEEN PATRICIA MARY WILKINSON,
DAVID WILLIAM WILKINSON, and WILKINSON INDEPENDENT
TRUSTEES LIMITED as trustees of the KL WILKINSON NO. 2 TRUST
CIV-2019-419-71

IN THE MATTER of the Family Protection Act 1955 AND
IN THE MATTER of the Estate of BARBARA ANN
WILKINSON

BETWEEN CHYLOE DEIDRE WILKINSON
Plaintiff

AND PATRICIA MARY WILKINSON,
BRIAN BILAS and LYNETTE MARGARET NICHOLSON as
Executors of the Estate of Barbara Ann Wilkinson

This judgment was delivered by me on 26 July 2019 at 10 a.m. pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

[1] The three proceedings that are the subject of this judgment involve the family of the late William Louis Wilkinson (“Bill”) and Barbara Anne Wilkinson (“Barbara”). Specifically:

(a)Their children:

§David William Wilkinson (“David”)

§Ann Frances Wilkinson (“Ann”)

§Patricia Mary Wilkinson (“Tricia”)

§Richard Peter Wilkinson (“Richard”)

§Neville Alan Louis Wilkinson (“Neville”) (“the children”)
(b)Their grandchildren: Children of Ann Wilkinson:
§Henry William Bell (“Henry”)

§ Declan Kenneth Bell (“Declan”) Children of Neville Wilkinson
§Daniel John Louis Wilkinson (“Daniel”)

§ James Colin Wilkinson (“James”) Child of Richard Wilkinson
§Chyloe Deidre Wilkinson (“Chyloe”)

(“the grandchildren”)

[2] Bill died, aged 88, on 28 August 2015. Bill left a will and codicil which after providing for a number of specific requests and expenses left the residue estate in the following manner:

(a)To pay the interest received on his loan to Barbara during her lifetime, and, after her death, to forgive the loan to The Duke Trust.

(b)To pay the net annual income arising from the balance of his Estate to Barbara, during her lifetime.

(c)After the death of Barbara, to pay the net annual income arising from the balance of his Estate equally amongst…

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 Wilkinson v Wilkinson

Details

AGLC: Wilkinson v Wilkinson [2019] NZHC 1729
Case: [2019] NZHC 1729
Decision Date: 26 July 2019

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Wilkinson v Wilkinson involved proceedings relating to the estates of William Louis Wilkinson and Barbara Ann Wilkinson. The case was brought by the deceased's children and grandchildren, asserting claims under the Family Protection Act 1955 and the Trustee Act 1956, as well as a Property (Relationships) Act 1976 claim by Barbara Wilkinson. The central legal issues revolved around whether the deceased had made adequate provision for his children and grandchildren, and if not, what should be done to rectify the situation. The court had to determine whether there had been a breach of moral duty by the deceased, and if so, how to address this breach in a manner consistent with the legislative framework and relevant case law.

The court's reasoning was grounded in the statutory provisions and the principles established by previous case law. It found that there had indeed been a breach of moral duty by William Louis Wilkinson, as he had not made adequate provision for his children and grandchildren. The court emphasized that its role was to make orders that would repair the breach to the extent necessary for the proper maintenance and support of the claimants. The settlement proposed by the parties was deemed appropriate as it ensured that those who were arguably omitted from adequate provision in the deceased's will were now provided for, while still safeguarding the entitlements of the grandchildren who were the initial beneficiaries. The court also noted the consent of all parties with a claim, which further supported the adoption of the proposed settlement.

Consequently, the court made the orders as sought by the parties, which included a determination that the children, Barbara's Estate, and Chyloe should receive an order of capital that would be deducted from the other grandchildren's capital sums. The court also ordered that the breach for Bill's Estate should be determined as at the date of death on the basis of a $4.6 million estate, and that the K L Wilkinson No. 2 Trust net assets should be divided equally between all the children and grandchildren. The court further ordered that the legal costs of the Estates and the trustees were to be met out of the Estates and Trust respectively, with each party otherwise bearing their own costs.

In conclusion, the court approved the settlement reached by the parties, ensuring that the deceased's estate was distributed in a manner that rectified the breach of moral duty while still respecting the entitlements of all beneficiaries. The orders reflected a balanced approach that addressed the concerns of all parties involved.

Orders