Hemara v Public Trust [2021] NZFC 4695

Published 22 June 2022

Application for further provision from estate — moral obligation — breach of moral duty — proper maintenance and support — Family Protection Act 1955, ss 3 & 4 — Adoption Act 1955, s 16 — Henry v Henry [2007] NZCA 42 — Williams v Aucutt [2000] 2 NZLR 479 — Auckland City Mission v Brown [2002] 2 NZLR 650 — Vincent v Lewis [2006] NZFLR 812 (HC) — Fisher v Kirby [2012] NZCA 310 — Allardice v Allardice [1911] AC 730 — Crosswell v Jenkins [1985] 3 NZFLR 570 (HC) — Carson v Lane [2019] NZHC 3259 — Moon v Carlin CIV-2010-414-5486 — Kinney v Pardington [2019] NZHC 317 — Waine v Tigg [2018] NZHC 1976 — Wills v Wills [1999] NZFLR 134 — Flathaug v Weaver [2003] NZFLR 730 (CA) — AP v Lucas [2021] NZHC 1017 — Harrison v Harrison (2007) 26 FRNZ 532 (HC). This hearing was to determine an application for the further provision of the testator's estate. The testator had left his estate to a charity, his sister, niece, one daughter and one granddaughter. There was no provision for his remaining two children. The executors, sister and children of the testator were in agreement that he had breached his moral duty to his children but disagreed as to how the breach should be remedied. The Court can order any provision from an estate that they think fit, including a lump sum payment or a percentage. The Judge applied the test as outlined in Vincent v Lewis: whether, objectively considered, there has been a breach of moral duty by the deceased, judged by the standards of a wise and just testator. The award for such a breach should be no more than necessary to repair the breach by making adequate provision for the applicant's proper maintenance and support. The Court held that the four gifts (totalling $125,000) to his niece, daughter, granddaughter and charity should stand, as the size of the estate was sufficient to allow for the children's claims without interfering with the testator's wishes. The eldest child had already been left $35,000 by her father. The Court increased the award by $145,000 to support her and aid her recovery from her health problems, and to pay her debts. The second child was awarded $160,000 to remedy the testator's failure to support him from his teenage years, and regain a better standard of living. The third child was awarded $170,000 to remedy the testator's failure to assist in her adult years and allow her to better her financial situation. The will was amended to provide for those awards from the estate. Judgment Date: 21 May 2021