Baldwin v McKinney [2019] NZFC 7231

Published 26 May 2021

Application for further provision from will — estrangement — maintenance and support — breach of moral duty — provision for grandchildren — variation of will — costs — Family Protection Act 1955, ss 3 & 4 — Estate and Gift Duties Act 1968 — Administration Act 1969 — Little v Angus [1981] 1 NZLR 126 — Williams v Aucutt [2002] 2 NZLR 479 — Vincent v Lewis (2006) 25 FRNZ 714 — Henry v Henry [2007] NZCA 42 — Flathaug v Weaver [2003] NZFLR 730 — Fisher v Kirby [2013] NZFLR 463 — Crosswell v Jenkins and Hall-Jones (1985) 3 NZFLR 570 — Moon v Carlin HC Auckland CIV-2010-404-5486 23 February 2011 — Bosch v Perpetual Trustee Co Ltd [1938] AC 463 (PC) — Ormsby v Van Selm [2015] NZHC 2822 — Ormsby v Van Selm [2016] NZCA 323 — Re Horton [1976] 1 NZLR 251 (CA) — Fraser v O'Grady HC Auckland M262/96, 20 May 1997. The claimants sought an order for further provision from their late father's will under s 4 Family Protection Act (the Act). He had last reviewed his will in 1999 and left them each $50,000. The rest went to his partner of over 25 years. At the time of his death the estate was worth $1.4 million. Each child had a strained relationship with the testator following his separation from their mother and difficult relationship with his new partner. The claimants also sought an order under s 3 of the Act for further provision for the testator's five grandchildren. The Judge found that although the testator had a moral duty to consider the position of his grandchildren, he did not breach the duty by not specifically providing for them. A testator can expect a grandchild's parent to provide for them, particularly if the parent has been provided for. There can be time delay and administration costs associated with making a provision for a child under 18. Only one grandchild had needs out of the ordinary and to give an award to one child could create feelings of unfairness and resentment. No further provision was to be provided for the grandchildren from the estate. It was agreed that the testator's failure to update his will in consideration of provision for his children was a breach of his moral duty. This issue was what amount should be awarded in order to remedy this breach. The Judge referred to case law and stated the correct course of action was to tale a "principled approach" based on the facts and circumstances of the case. Important considerations were to avoid being overly generous or overly niggardly and to ensure that the will of the testator was still reflected in the final outcome. The Judge determined the breach could be rectified by varying the testator’s will to provide that a specific request of $200,000 is paid to each of his children. This was to include the $50,000 they had already received. This amounted to roughly 14 per cent of the value of the estate. Costs of $27,500 were awarded to the claimants, to be paid from the estate. Judgment Date: 19 September 2019. * * * Note: names have been changed to comply with legal requirements. * * *