Phochai v Matthews [2019] NZFC 8347

Published 23 February 2021

Contested will — contracting out agreement — setting aside — serious injustice — de facto relationship — clarification of relationship property — separate property — provision from estate — proper maintenance and support — economic support — recognition — adequate provision — breach of moral duty — Family Protection Act 1955, s 4 — Property (Relationships) Act 1976, s 21 — Public Trust v Relph [2008] 2 NZLR — Williams v Aucutt [2000] 2 NZLR 249 — Auckland City Mission v Brown [2002] 2 NZLR 650 — Henry v Henry [2007] NZCA 42 — Wylie v Wylie [2003] 23 FRNZ 156 (CA). See also [2020] NZFC 5155 Phochai v Matthews. Following the death of the testator in 2016, his de facto partner (the applicant) and two of his children challenged his will. The will was made in 2001, and did not make any provision for the applicant partner, gave $10,000 each to two of his children and left the remaining $3.4 million to his youngest son. The applicant also challenged the legitimacy of a contracting out agreement (the COA) made between herself and the testator in 2005. The Judge first dealt with the COA. The parties had signed the agreement in the first year of their relationship, before they were in a de facto relationship as defined by the Property (Relationships) Act (the PRA). They had lived together from 2005 until the testator's death. The COA provided that 5 properties, business interests, vehicles and bank accounts owned by the testator at the time, were his separate property. The applicant retained as her separate property three properties in Thailand, a car, furniture, sewing equipment and bank accounts. There were some features of the COA that were unfair but nothing that amounted to serious injustice as required to set aside the agreement. As the applicant failed to provide adequate financial details, no order was made for provision from the testator's estate, as it would not be fair, accurate or reliable to make an award. A direction was made for more information to be provided to the Court before the quantum of any award could be made. The testator's son who had received most of his father's property acknowledged that his father had breached a moral duty to his other two children by leaving them only $10,000 (about 0.3 per cent of the estate). One of the children had mental health problems and had been unable to establish himself and required ongoing support. His father had drifted away from his son after his mental health began to deteriorate. The son was awarded $570,000 provision. This was so he could purchase a house and have a pool of money to maintain it. The testator's other child had become a doctor, settled with a partner and purchased a home in Australia. She had never had a relationship with her father after her parents separated. An award of $200,000 was given to rectify the breach of moral duty on behalf of the testator. This award was lower than many others in this area of law (about six per cent of the estate) but it took into account the estrangement, size of the estate and the competing claims from her brother and the testator's partner. Judgment Date: 10 October 2019.