Wolfgramm v Wolfgramm

[2023] NZHC 3202

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-000819

[2023] NZHC 3202

UNDER

the Family protection Act 1955

Part 18 of the High Court Rules 2016

IN THE MATTER OF

an application for further provision from the estate of Mereanna Wolfgramm (deceased)

BETWEEN

STANLEY CARL WOLFGRAMM and ALEXIS VIVIAN WOLFGRAMM

Plaintiffs

AND

KATRINA SENIKAU WOLFGRAMM

Defendant

Hearing:	25 October 2023
Counsel:	HL Thompson for Plaintiffs GC Jenkin for Defendant AJ Steele for Estate
Judgment:	16 November 2023

JUDGMENT OF DOWNS J

This judgment was delivered by me on Thursday, 16 November 2023 at 2.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

McMahon Butterworth Thompson, Auckland. Brannigans, Auckland.

GC Jenkin, Auckland. AJ Steele, Auckland.

WOLFGRAMM v WOLFGRAMM [2023] NZHC 3202 [16 November 2023]

The case

[1]        This  judgment  concerns  a  claim  by  two  adult  children  under  the  Family Protection Act 19551. The claim is primarily for what is known as a recognition award.

[2]        Recognition awards can be traced to a decision of the Court of Appeal in 2000.2 The Court held the term “support”—from the statutory phrase “proper maintenance and support”—is an additional and wider term than maintenance, and one connoting provision of comfort.3    A recognition award  addresses what would otherwise be    “a justifiable sense of exclusion from participation in the family estate”.4

Background

[3]I use Christian names to avoid confusion.

[4]        Mereanna Wolfgramm died 15 September 2021, aged 91. Four children survive her: Yvonne (aged 71); Alexis (67); Katrina (60); and Stanley (60).5 Katrina and Stanley are twins.

[5]        Mereanna left much of her estate to Katrina. Stanley and Alexis claim under the Act; each contends Mereanna breached her moral obligation as their mother. Yvonne has not claimed and played no role in the case.

[6]Frederick, Mereanna’s husband, died 13 May 2020.

[7]        Mereanna was Rarotongan; Frederick, Tongan. Mereanna and Frederick divided their time between Rarotonga, Tonga, and New Zealand, acquiring property in all three places. The family home was in Mt Albert, Auckland, and the children were raised in New Zealand.

1      The Act.

2      Williams v Aucutt [2000] 2 NZLR 479 (CA).

3 At [52].

4 At [52].

5      Brenda, a fifth child, died before Mereanna, aged 64 years.

[8]        On 11 October 2019, Mereanna made her second-to-last will. It is similar to that challenged.6

[9]        On 14 October 2019, Mereanna and Frederick travelled to Rarotonga. Mereanna’s health was fragile; so too Frederick’s. Mereanna had heart disease and other difficulties; Frederick, dementia and cancer. The couple wanted to live in their Rarotongan home, as it happens, for the last time.  They  returned to New Zealand  26 January 2020.

[10]      Shortly after their return, both were hospitalised. Frederick then went into a rest home, at which he died.

[11]      In the latter half of 2020, Mereanna sold the family home. She bought another home in Whangaparaoa, opposite Katrina and her husband. They provided $50,000 to fund the shortfall. Mereanna then “swapped” her property for their property, which resulted in a net gift to them valued at $250,000.7

[12]      On 15 July 2021, Mereanna made her final will. She also prepared a six-page letter expressing her “feelings and sentiments” and “reasons for certain decisions … in [the] will”. In very short, Mereanna said:

(a)Alexis should not have been living in their home in Rarotonga as she had her own home there “on the land I gave you”.

(b)Alexis had registered a car in her name intended for Frederick.

(c)Alexis had discouraged Mereanna and Frederick from travelling to Rarotonga.

(d)Alexis’ belongings were wrongly in their Rarotongan home.

6      But less favourable to Alexis, and more favourable to Stanley.

7      These transactions were documented in the usual way by lawyers.

(e)Alexis had been living in another Rarotongan home of Mereanna’s “for about 20 years without paying rent and … told family members … it was your house”.

(f)Alexis and Stanley had not helped sufficiently while Mereanna and Frederick were in Rarotonga.

(g)Stanley failed to arrange a telephone for Mereanna and Frederick in Rarotonga, which meant they struggled to communicate.

(h)Stanley failed to take Frederick to the hospital in Rarotonga.

(i)Stanley wrongly asserted Mereanna owed him money for a car.

(j)Stanley failed to accompany Mereanna and Frederick on the flight back to New Zealand.

(k)Stanley and Alexis behaved poorly when Frederick was admitted to hospital in New Zealand, and in the wake of Frederick’s death. Among other things, both left New Zealand “without even offering to contribute towards the funeral costs”.

(l)Yvonne had “decided not to have a relationship” with Mereanna, a decision which had endured for more than 30 years.

(m)Katrina had cared for Mereanna and Frederick since 2017 and enjoyed a close, loving relationship with both parents.

[13]As observed, Mereanna died 15 September 2021.

The estate

[14]      This topic must be introduced by an unusual feature: even the lawyers for the estate acknowledge “a question mark regarding whether … [the] property interests

were actually owned by Mereanna at the time of her death”.8 The point is illustrated by dealing with each major item individually, first using Mereanna’s own words from the will.

Rutaki

MY LAND IN RUTAKI, RAROTONGA:

This land is currently occupied by my daughter, ALEXIS ... in the event that the land is not registered in my daughter’s name, I wish my executor to ensure that this piece of land is acknowledged as belonging to ALEXIS.

[15]      Katrina says Mereanna owned Rutaki. Alexis says in 2010, Rutaki was given to her by her maternal grandmother, but wrongly placed in Mereanna’s name because of an error by a lawyer.

[16]      Rutaki has been recently valued at NZ$173,000 ($63,000 for the land, $95,000 for buildings, and $15,000 for improvements). I was told land in the Cook Islands is not held freehold in the way land is here, in turn affecting its value.

[17]      As Rutaki was registered in Mereanna’s name at the time of her death, I treat it as part of the estate.

Blackrock

My other land in Rarotonga, already gifted to my son STAN shall in the event of any dispute be transferred to him absolutely. He has built a house on this land and has treated it as his home. I authorise my trustee to attend on any legal documentation required to register his ownership and give this land to STAN absolutely.

[18]      No valuation evidence was offered in relation to Blackrock beyond Stanley’s observation the undeveloped plot was worth $30,000 years ago. As will be apparent from the will, Stanley has built a home on Blackrock.

[19]      Although the will says Blackrock had been gifted to Stanley, there is no evidence it was transferred to him. I, therefore, treat Blackrock as part of the estate.

8      Their memorandum of 24 October 2023.

Tupapa

MY LAND IN TUPAPA, RAROTONGA:

This land is on a 60 year lease to 2025 and has been occupied by my daughter ALEXIS for 15 years or more. In that time, she has not paid rent. My trustee shall treat the rent-free period as an acknowledgement that I have provided for ALEXIS in my lifetime. Upon my death, my trustee shall ensure that my daughter ALEXIS vacates this property, if she has not already in my lifetime, and the property sold and proceeds to be divided equally between KATRINA, STAN, YVONNE and ALEXIS.

[20]      No valuation evidence was offered in relation to Tupapa. As its lease expires soon (in 2025), there was some suggestion it is of little value.

[21]It is common ground Tupapa forms part of the estate.

Arorangi

MY HOUSE IN ARORANGI, RAROTONGA;

The land on which this house is situated I have already given to my daughter KATRINA as a gift in my lifetime. My husband FRED and I built the house on that land with our money. Upon my death I give this house to my daughter KATRINA absolutely.

[22]Arorangi has recently been valued at NZ$420,000 ($140,000 for the land,

$275,000 for buildings, and $5,000 for improvements). Arorangi cannot be in the estate as it was transferred (by what is known as an occupation order) to Katrina on or about 13 October 2014. Alexis facilitated that process. Indeed, she says she funded it.

Tonga

LAND IN TONGA

Any land to which I may become entitled to in Tonga I give to my son STAN absolutely.

[23]      As will be recalled, Frederick was Tongan. Frederick owned land in Tonga, on which he and Mereanna lived for a time. Clearly, Mereanna anticipated she may have an interest in that land.

[24]      Katrina says that interest arises from improvements to the land. Stanley says Tongan land is inherited through males only, so Mereanna could not have an interest.

[25]No valuation evidence was offered in relation to the Tongan land.

[26]      I am not persuaded Mereanna had an interest in the land (or improvements). There is too little information for me to conclude otherwise.

Whangaparaoa

Any property I may own in New Zealand at the time of my death I give to my daughter KATRINA absolutely.

[27]      This disposition concerns Mereanna’s Whangaparaoa home (which until the swap, had been owned by Katrina and her husband). Whangaparaoa has a rateable valuation of $800,000.

Other items

[28]      Other items are to be divided equally between Katrina and Stanley. Only two arise: a car and a small amount of cash.

[29]      Mereanna owned a 2005 Nissan Lafesta. Katrina says the car is worth approximately $8,500. The lawyers for the  estate  offer  a value  of $5,500, at most. I consider that figure realistic. Stanley has the car but says he does not want it.

[30]$2,596 is held in cash.

Value of the estate

[31]The estate, then, is valued at just over $1 million:

Rutaki	$173,000
Blackrock (valued years ago)	$30,000
Tupapa	No valuation evidence9

9      Treating Tupapa neutrally does not prejudice anyone as it is to be divided equally between the four children.

Whangaparaoa	$800,000
2005 Nissan LaFesta (maximum valuation)	$5,500
Cash	$2,596
Total	$1,011,096

[32]      The estate has a liability of $44,780. Jacinta Alexis, a granddaughter of Mereanna, also brought a claim under the Act. Her claim was to be heard with the claim by Stanley and Alexis, but the parties settled shortly before the hearing on the basis Jacinta receives $40,000 plus costs of $4,780.10

[33]      As will be evident, most of the estate’s value lies in Whangaparaoa, which passes to Katrina. Therein lies much of the grievance.

Principle

[34]      The Family Protection Act allows a defined class of persons, including children of the deceased,11 to seek provision from the estate for their “proper maintenance and support”.12 The Act has attracted a great deal of case law. Principle is well known, and uncontentious. The Court of Appeal’s decision in Little v Angus contains this summary:13

The inquiry is as to whether there has been a breach of moral duty judged by the standards of a wise and just testator or testatrix; and, if so, what is appropriate to remedy that breach. Only to that extent is the will to be disturbed. The size of the estate and any other moral claims on the deceased’s bounty are highly relevant. Changing social attitudes must have their influence on the existence and extent of moral duties. Whether there has been a breach of moral duty is customarily tested as at the date of the testator’s death; but in deciding how a breach should be remedied regard is had to later events.

[35]Another appears in Randerson J’s decision in Vincent v Lewis:14

(a)        The test is whether, objectively considered, there has been a breach of moral duty by [the deceased] judged by the standards of a wise and just [will-maker].

10     The Court approved settlement on 17 October 2023 (Minute of Gault J of that date).

11     Family Protection Act 1955, s 3(1).

12     Section 4(1).

13     Little v Angus [1981] 1 NZLR 126 (CA) at 127.

14     Vincent v Lewis [2006] NZFLR 812 (HC) at [81].

(b)        Moral duty is a composite expression which is not restricted to mere financial need but includes moral and ethical considerations.

(c)        Whether there has been such a breach is to be assessed in all the circumstances of the case including changing social attitudes.

(d)        The size of the estate and any other moral claims on [it] are relevant considerations.

(e)        It is not sufficient merely to show unfairness. It must be shown in a broad sense that the applicant has need of maintenance and support.

(f)          Mere disparity in the treatment of beneficiaries is not sufficient to establish a claim.

(g)        If a breach of moral duty is established, it is not for the court to be generous with the testator’s property beyond ordering such provision as is sufficient to repair the breach.

(h)        The court’s power does not extend to rewriting a will because of a perception it is unfair.

(i)          Although the relationship of parent and child is important and carries with it a moral obligation reflected in the Family Protection Act, it is nevertheless an obligation largely defined by the relationship which actually exists between parent and child during their joint lives.

[36]      As observed at the outset, recognition awards address what would otherwise be a justifiable sense of exclusion from participation in the family estate. Awards of this nature are typically more modest than awards which also embrace economic need.

The respective cases

[37]      The parties adduced extensive evidence and submissions. I attempt to capture the key aspects below.

A précis of the claim

[38]Stanley and Alexis contend Mereanna breached her moral duty to them:

(a)Stanley says he had an excellent relationship with Mereanna until she and Frederick returned to New Zealand in January 2020.

(b)Alexis acknowledges her relationship with Mereanna was imperfect, and  “could be tense”.  However, she describes their relationship as

“supportive” overall.15 As with Stanley, Alexis says the relationship deteriorated once Mereanna returned to New Zealand in 2020.

(c)Indeed, both say Mereanna then ceased all contact, something they did not want. Each attempted to make contact, directly or otherwise, but was rebuffed or ignored.16

[39]      Stanley and Alexis emphasise that Mereanna’s letter constitutes her perception of events, and no disentitling conduct arises on their part. Stanley and Alexis also emphasise that they contributed financially and otherwise during the later stages of Mereanna’s life.17

[40]      Alexis argues she should have some economic  support  by  an  award.  Alexis filed an affidavit shortly before the hearing, reception of which is unopposed. Through it, Alexis says she is living in Rutaki and ineligible for New Zealand superannuation or an Australian pension. She  must,  therefore,  survive  on  her Cook Islands pension (which is modest) and contract work with the Ministry of Marine Resources. Alexis appears to live alone. She has no children. An earlier affidavit refers to her owning land in Western Australia (with another), which she says is worth A$100,000.

[41]      Stanley and Alexis contend they should receive approximately 20 percent of the estate each.

A précis of the defence case

[42]      Katrina contends Mereanna did not breach her moral duty to Stanley or Alexis, so neither should receive an award.

[43]      Though not advancing disentitling conduct, Katrina observes that a claim must ultimately turn on the state of the relationship between deceased and claimant:

15     Applicants’ written submissions at para 22.

16     For example, Alexis says she sent flowers in recognition of Mereanna’s 90th birthday, and Stanley says he attempted to make contact through Katrina.

17     Those contributions are captured in their affidavits.

(a)Alexis’ relationship with her mother had been strained since at least 2019, as confirmed by a letter that year from a lawyer on behalf of Mereanna.

(b)Stanley’s relationship with Mereanna was better until she and Frederick went to Rarotonga in late 2019. The relationship then deteriorated abruptly, and contact ceased once Mereanna returned to New Zealand.

[44]      Katrina emphasises that Mereanna was ultimately very upset with both Stanley and Alexis. Mereanna’s distress is reflected in her letter accompanying the will and confirmed by evidence external to the family.

[45]      Finally, Katrina emphasises that Mereanna has provided for Stanley and Alexis: Tupapa is to be divided equally four ways; Rutaki goes to Alexis; Blackrock goes to Stanley; and Alexis lived rent free in Tupapa for between 15 and 20 years. Mereanna asked Alexis to pay rent of $200 per week, but Alexis never did.18 Therein lay the cause of at least some of Mereanna’s distress.

Analysis

[46]I make six points.

[47]      First, the relationship between Stanley and Mereanna was positive until she and Frederick went to Rarotonga in late 2019. This is confirmed by (a) the terms of Mereanna’s second-to-last will, in which Stanley received an equal share with Katrina of the residual estate, and (b) Stanley’s 2019 power of attorney for Mereanna in the event Katrina was unable to act as her attorney.

[48]      Second, the relationship between Alexis and Mereanna was strained, and had been for some time (I cannot be more precise about timeframe). That said, Alexis and Mereanna did not become estranged until the latter returned to New Zealand in early 2020. It follows Alexis and Mereanna had a relationship until then, however awkward.

18     Alexis acknowledges living there rent free but says Mereanna was content with that on the understanding Alexis would be responsible for maintaining Tupapa.

[49]      Third, Stanley and  Alexis  wanted  to  maintain  contact  with  Mereanna;  the estrangement was not mutual.

[50]      Fourth, a notional wise and just testator would have recognised these aspects by greater provision in the will for both Stanley and Alexis.

[51]      Fifth, the percentage sought is, however, much too high. The estate is not large; both claimants are well and truly adults; Mereanna’s wishes must be respected (beyond reparation for the breach), and the Court’s power does not encompass broad testamentary revision. Importantly, Mereanna made provision for Stanley and Alexis in her will. As will be recalled, Tupapa is to be divided equally four ways; Rutaki goes to Alexis; and Blackrock goes to Stanley. Furthermore, Alexis lived rent free at Tupapa for at least 15 years. On any view, that was a significant benefit.

[52]      Sixth, while a case could be made for Stanley to have a greater award than Alexis given the nature of his relationship with Mereanna, disparate treatment could aggravate matters rather than improve them, especially as Alexis appears less financially secure than her brother. That said, Alexis’ case for maintenance is not strong given her age, lifestyle (which she acknowledges is simple), lack of dependents, and the provisions for her identified above.

[53]      I, therefore, conclude Stanley and Alexis should each receive an additional five percent of the gross value of the estate, or $50,555, in recognition of their relationships with Mereanna.

Results

[54]The claim is upheld to the extent:

(a)Stanley has an additional interest in the estate to the value of $50,555.

(b)Alexis has an additional interest in the estate to the value of $50,555.

Costs

[55]      Agreement is strongly encouraged. If it cannot be achieved, I shall receive memoranda of not more than 10 pages each:

(a)By Thursday, 8 February 2024 on behalf of Stanley and Alexis.

(b)By Thursday, 22 February 2024 on behalf of Katrina and the estate.

……………………………..

Downs J