Bennett v Percy [2020] NZFC 770

Published 10 June 2020

Application for further provision from will — application for leave to apply out of time — breach of moral duty — failure to provide for children — final distribution of estate — res judicata — jurisdiction — farm — shares — Family Protection Act 1955, ss 2, 4, 9 & 11A — Family Court Rules 2002, rr 5, 41, 42, 379, 384 & 386 — District Court Rules 2014, r 5.51 — Companies Act 1993, ss 39 & 84 — Trustee Act 1956, s 51— Re Stewart [2004] 1 NZLR 354 — Pabirowski v Pabirowski, HC Auckland, CIV 2008-488-000 555, 5 March 2009 — Kahn v Kahn [2008] NZFLR 782 — Lai v Huang [2017] NZCA 499 — Re Parry, High Court, Auckland, M 791/97, 20 October 1997 — Re Magson [1983] NZLR 592 — Henderson v Henderson (1843) All ER Rep 378 — Commissioner of Police v Geddis [2013] NZHC 1199 — Williams v Aucutt [2000] 2 NZLR 479 — Auckland City Mission v Brown [2002] 2 NZLR 650 — Henry v Henry [2007] NZCA 42, [2007] NZFLR 640 — Flathaug v Weaver [2003] NZFLR 730 [CA] — Fisher v Kirby [2012] NZCA 310 — RE Lever HC Christchurch m 278/87, 6 July 1988 — Vincent v Lewis [2006] NZFLR 812 — Paewai-Kohe v Paewai [2014] NZHC 3137 — RE Wright (deceased) [1954] NZLR 630 (CA) — Little v Angus [1981] 1 NZLR 126 (CA) — RE Wilson [1973] 2 NZLR 359. The applicant sought further provision from her mother's will after her brother and his wife were left the lion's share of the estate. The applicant was given a one third share of chattels of very little value. One brother was also left a third of the chattels while the second received 40,000 shares of a farm and over $100,000 from the sale of a property. The applicant had made her claim outside the 12-month statutory limitation. Although she could not give a reason for the delay, the Judge granted her leave to apply out of time on the basis of the strength of her claim. As the 40,000 farm shares had been registered as having been transferred to the second brother in accordance with the Companies Act also at issue was whether final distribution had been made. As the independent trustee had not given assent to the transfer no distribution of those shares had been made. The mother had breached a moral duty by failing to provide for her daughter, however as their relationship had been estranged, the quantum of the award should be limited. The applicant was awarded 4000 shares and $10,000. No award could be made to the other brother as he had not made an application. Judgment Date: 5 February 2020.