PAEWAI and Others v PAEWAI-KOHE and Another

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeCooper J
Judgment Date11 September 2015
Neutral Citation[2015] NZCA 437
Docket NumberCA331/2015
Date11 September 2015

[2015] NZCA 437



Harrison, French and Cooper JJ


Api Terina Paewai
First Applicant
Huiarangi Paewai Smith
Second Applicant
Ena Paewai
Third Applicant
Kareeve Moana Witehira, Kamilla Mariana Witehira and Kayla Ivy Emma Witehira as Successors to Kara Ivy Paewai Witehira (Deceased)
Fourth Applicants
Manahi Montrose Paewai
Fifth Applicant
Noel Meha Paewai
Sixth Applicant
Alma Ruth Paewai-Kohe
First Respondent
Ora Going-Richardson and Duncan Richardson
Second Respondents

T Molloy for Applicants

B P Molloy and H G Holmes for First Respondents

No appearance for Second Respondents

Application for leave to appeal against a High Court (HC) decision that allowed an appeal against claim under s4 Family Protection Act 1955 (FPA) (claims against estate of deceased person for maintenance) — the deceased's will had left 64 percent of her estate to the daughter who had cared for her and her Downs syndrome son during their respective life times — the rest of her estate she divided in unequal shares between her surviving children and one share to the children of her deceased daughter — the Family Court (FC) had held that equal division would have been appropriate for the purposes of s4 FPA — also held that the deceased had been mistaken as to the financial situation of two of her children when making her will — the HC held that the FC erred by adopting a presumption of equal sharing amongst the children but that there had been a breach of moral duty — concluded that 40 per cent of the estate should go to the daughter who cared for her and the remaining 60 per cent divided equally between the siblings — whether the HC Judge erred in finding that equal treatment of children was not an appropriate starting point for assessment of proper provision under s 4 FPA — whether the applicants had identified questions of law or fact such as would justify granting leave for a second appeal.

The issues were: whether the HC Judge erred in law in finding that equal treatment of children was not an appropriate starting point for assessment of proper provision under s 4 FPA; and whether the applicants had identified questions of law or fact such as would justify granting leave for a second appeal.

Held: The test to be applied in deciding whether or not to grant leave for a second appeal under s67 JA was set out in Waller v Hider. The appeal had to raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal. The primary function was then to clarify the law and to determine whether it had been properly construed and applied by the Court below.

The HC erred in holding that the FC made an error of law in adopting the principle of equal division between siblings as an appropriate starting point. For present purposes however that did not matter, because there was no relevant error in the way the HC proceeded to evaluate the relevant issues for the purpose of reaching her own decision as to the appropriate division among the beneficiaries of the property in the estate. There was ample justification for her conclusion that Alma was entitled to a much greater share of the estate than her siblings. Alma had cared for Nitama and the deceased for many years and the deceased had recorded this against the possibility of a challenge to the will. Alma had lived in the property and paid all associated outgoings including the deceased's personal expenses for the previous 10 years. These were all relevant considerations justifying special provision for Alma under the will. There was no error of law in the HC Judge's reasoning. Consequently, the first ground on which the application for leave was advanced cannot be sustained.

The same was true of the second and third grounds. It could not be said the HC Judge failed to consider mistakes of fact made by the deceased when preparing her will. The judgment itself showed that was incorrect. Nor was the HC Judge's finding on appropriate provision for the applicants plainly wrong. On the contrary, it was properly reasoned on the facts of the case.

The applicants had not identified questions of law or fact such as would justify granting leave for a second appeal.

Application for leave to appeal dismissed.

  • A The application for leave to appeal is dismissed.

  • B The respondents are entitled to costs calculated for a standard application for leave to appeal on a band A basis with usual disbursements.


(Given by Cooper J)


The applicants, all of them children or grandchildren of Hineapa Paewai (deceased), seek leave to appeal to this Court under s 67(2) of the Judicature Act 1908 and s 15(3) of the Family Protection Act 1955 (the Act) against a judgment of Thomas J. 1


Thomas J had allowed an appeal against a Family Court decision granting the respondents' substantive application under s 4 of the Act. 2 She subsequently refused an application for leave to appeal to this Court. 3


Api Paewai, Huiarangi Paewai Smith, Ena Paewai, Manahi Paewai and Noel Paewai are five of the deceased's children. Nitama and Kara Witehira were also children of the deceased, and are themselves now deceased. The fourth applicants, Kareeve, Kamilla and Kayla are the children of Kara Witehira, and so they are the deceased's grandchildren. Alma Paewai-Kohe was the eighth of the deceased's children and the second respondents are the executors of Mrs Paewai's will.


Mrs Paewai died on 29 October 2009. She made her last will on 4 July 2008, when she was 82 years old. Under the will, her estate was to be divided as follows: 4

  • (a) The family home at 7 Hillside Crescent, Mount Eden, Auckland, was left to Alma together with one half of the land at the address on which the dwelling was erected.

  • (b) Following subdivision, the other half of the land was to be sold.

  • (c) The proceeds of sale — net of costs of subdivision and sale — were to be divided between Ena (Auckland), Kara (Manurewa), Noel (Auckland), Huiarangi (Gold Coast), Api (Auckland) and Manahi (New South Wales) in the following proportions:

    • (i) Ena and Manahi were to receive 10% each;

    • (ii) Noel, Huiarangi and Api were to receive 20% each; and

    • (iii) Kara was to receive 20% on trust for her maintenance and welfare during her lifetime and then the balance to her three children: Kareeve, Kayla and Kamillia.

  • (d) Alma was to retain the chattels during Nitama's lifetime.

  • (e) After Nitama's death the chattels were to be distributed between the children in accordance with a list Mrs Paewai left with the will.

  • (f) Any residue of the estate was to be divided between the children in equal shares.


At the time of the High Court hearing, the major asset in the estate was the property at 7 Hillside Crescent. It was valued at between $2.5 and $2.8 million. When the will was made, Nitama was still alive. He had Down Syndrome, requiring constant care. Mrs Paewai included in her will a statement that:

… In making this gift I am taking into account the assistance [Alma] has given to me and my son Nitama and that she will continue to provide a home for Nitama during his lifetime.


The effect of the will was to leave 64 per cent of the estate's value to Alma, 3.6 per cent to Ena and Manahi and 7.2 per cent to the remaining children.

Family Court judgment

In the Family Court, Judge McHardy determined that by making her will in these terms Mrs Paewai had breached the moral duty she owed...

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