Belinda Brown v Nicholas Brown and Robert Narev as Executors and Trustees of the Estate of Richard Brown
| Jurisdiction | New Zealand |
| Judge | Miller J |
| Judgment Date | 10 October 2022 |
| Neutral Citation | [2022] NZCA 476 |
| Docket Number | CA333/2021 |
| Court | Court of Appeal |
and
[2022] NZCA 476
Miller, Clifford and Dobson JJ
CA333/2021
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
Trusts — appeal against a decision declining a claim for greater provision out of the estate of the appellant's grandfather — estrangement — moral duty of grandfather — duty of mother to provide for the appellant — Family protection Act 1955
M G Locke for Appellant
No appearance for First Respondent
A H Waalkens KC and S A Beattie for Second Respondent
No appearance for the Executors and Trustees
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A The appeal is dismissed.
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B Costs are reserved.
(Given by Miller J)
| Introduction | [1] |
| The family circumstances | [5] |
| The testator | [5] |
| Testator's children and grandchildren | [10] |
| The estate and the testamentary provisions | [20] |
| The claims | [26] |
| Evidence on preparation of the codicil | [38] |
| The High Court judgment | [39] |
| Arguments on appeal | [51] |
| Applicable principles | [60] |
| Analysis | [66] |
| Result | [79] |
This appeal is brought by one of a number of claimants for provision out of the estate of Richard Brown (the testator), under the provisions of the Family Protection Act 1955 (the Act). The appellant (Belinda) is one of eight grandchildren of the testator. 1 Belinda's mother, Danielle, was one of two daughters of the testator (the other being Sarah), both of whom claimed for greater provision out of the estate than was provided for them. Sarah's son (Brodie) who received a gift of $15,000 from the estate also sought further provision.
All their claims were unsuccessful. 2 Belinda is the only applicant to have pursued an appeal.
The Court's jurisdiction to order provision out of a deceased's estate or on an intestacy is derived from s 4(1) of the Act, which provides as follows:
(1) If any person (referred to in this Act as the deceased) dies, whether testate or intestate, and in terms of his or her will or as a result of his or her intestacy adequate provision is not available from his or her estate for the proper maintenance and support of the persons by whom or on whose behalf application may be made under this Act, the court may, at its discretion on application so made, order that any provision the court thinks fit be made out of the deceased's estate for all or any of those persons.
There was affidavit evidence before the High Court. None of the deponents were called for cross-examination. Most of Gordon J's factual analysis is not now in issue. It is accordingly sufficient to take the factual background largely from the thorough analysis in the judgment under appeal.
In 1951 the testator and his girlfriend (Delia) married, with family support, at the age of 17 or 18 years. Their child, Danielle, was born in 1952. The testator and Delia's second child, Nicholas, was born in 1953 and a second daughter, Sarah, was born in 1957. There was some uncertainty as to precise dates and ages because of inconsistencies in the evidence, but nothing turns on it. It appears that they are now respectively about 70, 69 and 65 years old.
The testator set up a manufacturing business in the early years of their married life which ultimately became very successful. He devoted a lot of effort to the business and worked long hours. He and Delia separated in or about 1967. After that event Danielle lived with her mother and Sarah initially lived with her father, but following contested custody proceedings she also lived with her mother. Nicholas lived with his father.
The testator married his second wife (Catherine) in 1979. Catherine had two sons by a previous marriage.
The testator executed his final will in March 2011 and after numerous consultations with his solicitor, completed a codicil to it in July 2018. He died in August 2018.
Catherine has survived the testator. She was described at the time of the High Court hearing as being “not well”. 3 She completed an affidavit in support of her stepson Nicholas' defence of the claims in the proceedings.
In explaining the family relationships and provisions in the testator's will and codicil, the Judge annexed to her judgment a diagram outlining the relationships and provisions. There has been no challenge to its accuracy and we gratefully adopt and annex that diagram at the end of our judgment.
Danielle, the appellant's mother, would have been approximately 15 years' old when her parents separated. She had little contact with the testator after that. Danielle lived in Sydney for a short time where her first daughter, Anna, was born in 1972. At the age of 11 Anna was adopted out.
Danielle had two further daughters: the appellant in this appeal; Belinda, who was born in 1974; and Rachel who was born in 1985. Danielle has been married twice but at the time of the High Court hearing was living on her own in a home that she had purchased. She had mostly provided for herself financially since leaving home. Her father is not a presence in her life.
In March 1996, Danielle made allegations of sexual, physical and psychological abuse during her childhood against the testator. Her solicitor's letter claimed $1.5 million as compensation for the harm. The testator denied the allegations and later that same year a settlement was reached pursuant to which the testator paid Danielle $20,000 without accepting any substance in the claims she had made. An acknowledgement signed by Danielle in return for that payment stated:
I accept my father's denials of any wrong conduct. I unreservedly withdraw the allegations of abuse and neglect made by me and acknowledge they were unjustified. I undertake not to raise these hurtful allegations again.
Danielle did in fact rely on those allegations of abuse in the High Court in the present proceeding, seeking to prove that she had been abused. Much of the judgment under appeal is concerned with this issue. 4 She claimed that his hatred for her meant that she was shut out of his life and disadvantaged relative to her siblings.
Sarah, the testator's younger daughter, maintained contact with the testator after her parents separated. Despite Delia being awarded custody of her, she worked for the testator in the holidays at his factory and lived with him for a period prior to his second marriage to Catherine in 1979, at which time Sarah moved out. Sarah was then aged 23 and was working for the testator. In 1981 she had a daughter, who was adopted out. Sarah married in 1984 and had a son, Brodie, in 1985. That child was the testator's first grandson. Sarah and her husband separated in 1987 and she enjoyed support from the testator for many years thereafter.
In 1999 the testator settled the E Trust for the benefit of Sarah and Brodie. That trust has purchased different properties as homes for Sarah and Brodie from time to time and at the time of the High Court hearing Sarah continued to live in a house owned by the E Trust. Sarah was paid a weekly allowance by the testator. We summarise Brodie's position in dealing with his claims at [29]–[34] below.
The testator's son, Nicholas, was born in 1953 and the two enjoyed a very close relationship until the testator died. Nicholas worked with the testator in the school holidays and went to work permanently in the testator's business after he left school. He became the general manager of the business from about 1980. His evidence was that he was not paid anything like a fair wage for the work he was performing until a restructuring of the business was undertaken by the testator around 1985. Nicholas agreed to buy his father out of the business over a period of five or six years. From then until the business was closed in 1999 Nicholas deposed that the testator remained involved, giving him guidance and advice. Further, in the early 2000s when Nicholas set up another business, the testator provided advice and financial support.
Nicholas also remained close to his stepmother. Nicholas had four children who all remained close to the testator. Nicholas is divorced from the mother of his children.
In 2004 the testator settled the R Trust for the benefit of Nicholas and his children.
The Judge summarised the estate as having a total value of just over $7.74 million. It comprised: 5
(a) A half-share in the testator and Catherine's home. As at 3 February 2021 the half share was valued at $2.45 million; and
(b) A cash balance of $204,000 (in round figures); and
(c) Any surplus from the separate estate fund for Catherine (initially $500,000 under the will). From that fund there is a six-monthly payment of $25,000 to Catherine. The balance of the fund, as at the date of trial, was $365,000 (in round figures); and
(d) A portfolio of five residential properties (not including the home he and Catherine had occupied) having a total value as at January 2021 of $4.725 million.
The cash balance had been reduced by $20,000 to pay out Rachel, the youngest of Danielle's three children, who had settled a claim she had brought against the estate under the Act.
After specific gifts and bequests, the testator had divided the residue of his estate into eight equal parts. In considering the claims, the High Court conservatively valued a one-eighth share in the residue at $306,250. 6 Danielle, in pursuing her claim, adopted the figure of $334,000 for a one-eighth share in part because she anticipated that the funds set aside for periodic payments to Catherine of $500,000 were likely not to all be...
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