Knight v Hunt  NZFC 4406
Published 18 September 2019
Application to determine the interests of parties — dispute over will — extent and nature of moral duty — quantum of award — sexual abuse — applicant
sexually abused by deceased — moral obligation — wise and just testator — Family Protection Act 1955, ss 3, 4 & 9 — Little v Angus  1 NZLR 126
(CA) — Williams v Aucutt  2 NZLR 479 — Re Magson  NZLR 592 (CA).
The applicant claimed she was entitled for provision from the residual estate of her deceased grandfather. Proceedings in 2017 had already dealt with a dispute
between other children and grandchildren of the deceased over the entire estate, meaning she could only make a claim against the residual amount. She had not
participated in the first proceedings as she was unaware of them. Her application was made out of time but leave was not opposed by any involved parties or
persons. There was also no dispute that there had been a breach of moral obligation on behalf of the deceased. The issue in this dispute was limited to the extent
and nature of the moral duty owed to the applicant and the quantum of any award.
The complicated family dynamics were further muddied by the fact the deceased had sexually abused several of his relatives, and had been criminally
convicted and imprisoned in the 1990s for offending against the applicant.
The first argument in support of the applicant's claim for provision from the residual estate of the deceased was that he had breached a moral duty owed to her by
way of his sexual offending against her. She claimed her childhood was stolen, she had suffered mentally and emotionally and required counselling that she had
not always been able to afford.
The second argument advanced was that as her father, the deceased's son, had received nothing from the estate, there was no prospect of "trickledown" inherited
funds from him. In general, she claimed that a wise and just testator would have provided maintenance and support to her under the will.
The respondents had indicated that the Court's decision would be followed.
The interested parties (the relatives involved in the first proceedings) stated that an award ought to be made to the applicant to remedy and compensate for the
breach of moral duty owed by the deceased due to his sexual offending against her. However, it was submitted there was no added discrete moral duty owed to
her for any maintenance and support by the deceased just because the applicant was a grandchild.
The Court decided that in the circumstances, the applicant was not entitled to any award because of her relationship to the deceased and the fact her father
received no inheritance. However, it was clear that she was owed a compensatory award to rectify the breach of moral duty owed by the deceased in relation to
his offending against her.
The next issue to determine was the quantum of the award. As per case law, the Court was not to be over generous or too niggardly and the award must be the
minimum required to repair the breach by the testator (although the Judge noted no amount of money or property could undo the harm caused by the abuse the
applicant suffered). Based on the serious breach of moral duty by the deceased (six years of sexual offending), the deceased's right to distribute his estate as he
saw fit, the applicant's relationship as grandchild and not child, the inheritance of her relatives, the first settlement of the entire estate, the applicant's diagnosis of
a serious and permanent medical condition, parity with other victims of the deceased, and that the balance of the estate remained to be distributed from the first
court order in 2017, the Court arrived at the figure of $95,000 to be awarded to the applicant. Judgment Date: 14 June 2019. * * * Note: names have been changed to comply with legal requirements. * * *