Guzman v Osborne [2020] NZFC 1983

Published 13 July 2020

Application for interim spousal maintenance — application against estate of deceased spouse — jurisdiction — contracting-out agreement — unique factual circumstances — separate property — scope of contract — plain and ordinary meaning — intention — lump sum payment — Family Protection Act 1980, ss 61, 67, 69, 70 & 82 — Property (Relationships) Act 1976, s 21 & Part 8 — Beric v Chaplain [2018] NZFC 7076 — M v D-GSW (1991) 7 FRNZ 626 (FC) — Thakurdas v Wadsworth [2018] NZHC 1106; [2018] NZFLR 451 (HC) — Taylor v Taylor FC Auckland FP115/93, 20 October 1993 — Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 — Boat Park Ltd v Hutchinson & Findlay [1999] 2 NZLR 74 — Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5; [2010] 2 NZLR 444 — Pyne Gould Guinness Ltd v Montgomery Watson (NZ) Ltd [2001] NZAR 789 (CA). The applicant sought interim spousal maintenance from the estate of her late husband, under the Family Proceedings Act (the Act). This was only the second application for maintenance against an estate since the enactment of the Act 40 years ago. First the Judge had to determine whether an application for spousal maintenance could be made against a deceased partner’s estate. If the answer was yes, the issue was whether the applicant was estopped from making her application as a consequence of a contracting out agreement (the COA) entered into by the applicant and her late husband pursuant to s 21 of the Property (Relationships) Act. The sole purpose of this hearing was to determine whether the applicant could bring such an application; if she was able, then another hearing would be set down for the substantive issues. The parties had been married for around eight years before the sudden death of the applicant's husband. They had no children together, but both had children from previous relationships. They had entered into a COA which provided they would each retain their own property only, and the deceased made no provision for the applicant in his will. The Judge determined there was jurisdiction to award interim spousal maintenance against an estate. Section 82 of the Act was silent on the matter but the purpose of the Act was to prevent unfairness and it would be unfair to prevent an applicant from receiving interim relief. The limited case law on the matter supported this conclusion. The COA also did not prevent the applicant from seeking interim spousal maintenance. The COA was silent on the matter and it would be a long bow to draw that the parties had contracted out of their legislative rights and obligations without ever discussing or confirming the matter. The ordinary meaning and intention of the COA did not preclude the applicant from bringing an application under the Act. There was jurisdiction for the application and the applicant was not estopped by the COA. Judgment Date: 20 April 2020. * * * Note: names have been changed to comply with legal requirements. * * *