IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CIV-2019-404-948
[2021] NZHC 1045	

UNDER	Part 18 High Court Rules, The Family Protection Act 1955 and the Law Reform (Testamentary Promises) Act 1949	
IN THE MATTER	of the estate of RICHARD BROWN	
BETWEEN	DANIELLE BROWN
Plaintiff	
AND	NICHOLAS BROWN AND
ROBERT NAREV AS EXECUTORS AND TRUSTEES OF THE ESTATE OF RICHARD BROWN
Defendants
…/cont	

Hearing:	15-16 March 2021	
Appearances:	S R Jefferson QC and J L Thomas for Plaintiff in CIV-2019-404- 948
M G Locke for Plaintiff in CIV-2019-404-1212 P McKendrick for the Defendants
A H Waalkens QC and S A Beattie for Nicholas, Interested Party G Bogiatto for Sarah, Interested Party
H Fulton for Brodie, Interested Party	
Judgment:	11 May 2021	

JUDGMENT OF GORDON J

This judgment was delivered by me on 11 May 2021 at 3.30 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

BROWN v BROWN [2021] NZHC 1045 [11 May 2021]

CIV-2019-404-1212

UNDER	Part 18 of High Court rules, the Family Protection Act 11955
IN THE MATTER	of the Estate of RICHARD BROWN BETWEEN	BELINDA BROWN
Plaintiff

AND	NICHOLAS BROWN AND
ROBERT NAREV AS EXECUTORS AND TRUSTEES OF THE ESTATE OF RICHARD BROWN
Defendants

Solicitors:	Schnauer and Co Ltd, Auckland
Davenports West, Auckland Glaister Ennor, Auckland Denham Branwell, Manukau G Bogiatto, Auckland
R Wood, Auckland Counsel:	S R Jefferson QC, Auckland
A H Waalkens QC, Auckland
H Fulton, Auckland

TABLE OF CONTENTS

Background	[6]
Size of estate	[22]
Terms of will and codicil	[25]
The claims and opposition	[28]
Danielle	[28]
Sarah	[35]
Belinda	[44]
Brodie	[53]
The issues	[64]
Family Protection Act 1955	[65]
Unfairness/disparity of benefits	[75]
Inter vivos contributions	[80]
Allegation of abuse and alleged resulting estrangement	[85]
Percentage-based approach?	[91]
Grandchildren	[92]
Estoppel	[98]
Discussion	[101]
Danielle	[101]
Sarah	[179]
Belinda	[204]
Brodie	[217]
Costs	[224]

[1]	Richard Brown1 died on 12 August 2018.

[2]	This is a claim under s 4 of the Family Protection Act 1955 (the Act) by two of Richard’s three children, Danielle and Sarah, for further provision from their father’s estate; by one of Danielle’s three daughters, Belinda, for provision from her grandfather’s estate;2 and by Sarah’s son Brodie for further provision from his grandfather’s estate.

[3]	The applications are opposed by Richard’s third child and primary beneficiary, Nicholas (in his personal capacity). Nicholas is also an executor of the estate along with solicitor, Robert Narev. The executors abide the decision of the Court.

[4]	Danielle discontinued another claim made under the Law Reform (Testamentary Promises) Act 1949 prior to the hearing.

[5]	Evidence was by way of affidavits. There was no cross-examination.

Background

[6]	In 1951, Richard’s then girlfriend, Delia, became pregnant. The two of them were 17 years’ old at the time. There was family pressure on them to get married. Their daughter, Danielle, was born in 1952. She is now aged 68. Their second child, Nicholas, was born in 19533 followed by Sarah in 1957. Nicholas is 66 or 67 years’ old and Sarah is 63 years’ old.

[7]	In the early years of married life, Richard set up his own manufacturing business, which ultimately became very successful. He devoted a lot of effort to establishing his business and worked long hours.

1	This is not his real name. Having regard to the allegations made (which are of a sensitive nature), I have not used the real names of any of the family members. All parties either proposed or at least did not oppose anonymisation.
2	The youngest of Danielle’s daughters also made a claim under s 4 of the Act for provision from her grandfather’s estate. She settled her claim prior to the hearing for $20,000.
3	Different dates are given in the evidence, namely 1953 and 1954.

[8]	Delia and Richard separated in 1967.4 Danielle lived with her mother and Sarah initially lived with her father, but after contested custody proceedings she lived with her mother. Nicholas lived with his father.

[9]	Danielle had little contact with her father after her parents separated. There is disagreement as to the cause of the estrangement. Danielle lived in Sydney for a short time, where her first daughter Anna, who was later adopted out (at the age of 11), was born in 1972. She had two further daughters, Belinda and Rachel born in 1974 and 1985. Belinda is one of the claimants in this proceeding. Danielle has mostly provided for herself financially since leaving home in 1968. She was married twice but now lives on her own in a home she purchased.

[10]	In March 1996, Danielle’s solicitors wrote to Richard alleging sexual, physical and emotional abuse in her childhood and claiming $1.5 million. Richard denied the allegations. In November 1996, after correspondence between solicitors, a settlement was reached. Richard paid Danielle a sum of $20,000 (without accepting there was any substance to her claims). Danielle received that sum signing an acknowledgment saying:

… I accept my father’s denials of any wrong conduct. I unreservedly withdraw the allegations of abuse and neglect made by me and acknowledge they were unjustified. I undertake not to raise these hurtful allegations again.

[11]	Danielle relies on those allegations in this proceeding.

[12]	Although Delia was awarded custody of Sarah, Sarah had continued contact with Richard after her parents separated, including working for him in the holidays at his factory. Sarah also lived with her father at one stage until his marriage to his second wife, Catherine, in 1979 when Sarah moved out. At that time. Sarah was aged 23 and was working for her father. Sarah (at the time a single mother) had a daughter in 1981 who was adopted out. After marrying in 1984, Sarah gave birth to her son, Brodie, Richard’s first grandson, in 1985. Sarah and her husband separated in 1987. There is

4	Different dates are given for the separation. For example, in Danielle’s affidavit sworn in proceedings, in which she made a claim against her mother’s estate, she says her parents separated in 1964. Nicholas says the separation was in April 1967. The 1967 date seems more likely having regard to events that will be discussed later in the judgment.

disagreement as to the closeness of the relationship between Sarah and Richard, at least in more recent times. What is clear is that Richard provided support over many years to Sarah and Brodie.

[13]	In 1999, Richard settled the E Trust for the benefit of Sarah and Brodie. The Trust purchased different properties from time to time for Sarah and Brodie to live in (on a continuing basis). Sarah currently lives in a house owned by the E Trust. Sarah was also paid a weekly allowance. I will refer to the detail of those payments later in this judgment.

[14]	Both Danielle and Sarah have previously made claims in relation to the wills of other family members. In October 1995, their paternal grandmother died. They each made a claim against her estate and each received $10,000. In 2012, Delia died. Both Danielle and Sarah made a claim against their mother’s estate and were awarded
$7,000 each.

[15]	Finally Nicholas. He had a very close relationship with his father from childhood until his father died. Nicholas worked with his father in the school holidays at his business. When he left school, he went to work with his father. The two of them worked closely together.

[16]	Nicholas became General Manager of the business from about 1980. He says he was not paid anything akin to a fair wage or salary for the work that he was performing. He was paid about half what the mechanics and technicians were paid. Nicholas says that around 1985, for various reasons, his father decided he wanted to retire. The business was restructured with Nicholas retaining part of the business under an agreement with his father to pay approximately $250,000 for the business over the following five to six years. From then until the time when the business ultimately closed in 1999, Nicholas says his father was involved giving him guidance and advice. Later, in the early 2000s, Richard provided Nicholas with advice and non- financial support in setting up another business.

[17]	Nicholas remained close to his father and his stepmother, Catherine. Nicholas’ four children were also close to their grandfather.

[18]	In August 2004, Richard settled the R Trust for the benefit of Nicholas and his children.

[19]	On 22 March 2011, Richard executed his final will.

[20]	In 2018, Richard met with his solicitor, Ann Davidson of Sellar Bone & Partners on four occasions, being 16 May, 7 and 14 June and 9 July. The purpose of the meetings was to review the provisions of his then last will, and then to prepare (and have him sign) the amendments that he wanted to be made as reflected in the codicil ultimately executed on 9 July 2018.

[21]	Richard died on 12 August 2018 and probate of his will and codicil was granted by order of the High Court in Wellington on 25 September 2018. His second wife Catherine is still alive, although the evidence is that she is not well. She is aged 82. Catherine did not file a statement of defence to any of the claims but has sworn an affidavit in support of Nicholas’ opposition.

Size of estate

[22]	The assets in the estate total just over $7.4 million. The residue comprises:

(a)	A half-share in Richard and Catherine’s home.5 As at 3 February 2021 the half share was valued at $2.45 million;

(b)	A cash balance of $204,000 (in round figures);6 and

(c)	Any surplus from the separate estate fund for Catherine (initially
$500,000 under the will). From that fund there is a six-monthly payment of $25,000 to Catherine. The balance of the fund, as at the date of trial, was $365,000 (in round figures).

5	Catherine has a life interest in the home and continues to live there.
6	When the evidence was filed the cash balance was $223,986.25. Since then $20,000 has been paid to Rachel in settlement of her claim. The (as yet unknown) estate costs of trial and future legal costs, together with future outgoings on Richard and Catherine’s home until Catherine’s death will need to be deducted from the sum of $204,000.

[23]	Under the will and codicil, the residue is divided into eight equal parts.

[24]	Also, in the estate there were five residential properties (in addition to Richard and Catherine’s home) with a total value of $4,725,000 as at 26 January 2021 (the properties were valued individually at: $845,000; $840,000; $905,000; $835,000; and
$1,300,000).

Terms of will and codicil

[25]	The provisions under the will and codicil are incorporated in the family tree, which is annexed to this judgment. As noted in [23] above, the residue was divided into eight equal parts. Adopting a conservative approach and taking into account only the value of the half share in Richard and Catherine’s home, a one-eighth share of the residue is $306,250. However, Danielle, adopted the figure of $334,000 (in round figures) for a one-eighth share. That figure incorporates a portion of the sums referred to in [22](b) and (c) above.

[26]	In summary, the bequests under the will were as follows:

(a)	Catherine (by survivorship): money in a joint account of $1.82 million, life interest in the home she shared with Richard, and $25,000 every six months up to $500,000;

(b)	Danielle: two-eighths of residue (at a minimum $612,500 or possibly up to $668,000 adopting the figure calculated by Danielle);

(c)	Nicholas: two-eighths of residue and the five residential properties referred to in [24] above;

(d)	Sarah: one-eighth of residue7 (see also gift to E Trust below);

(e)	Five grandchildren (Nicholas’ four children and Danielle’s oldest daughter): one-fifth each of two-eighths of residue. There was no

7	$300 per week has been paid to Sarah since 8 July 2019 pursuant to s 47(2) Administration Act 1969.

provision for Danielle’s two other daughters, Belinda and Rachel. None of the grandchildren are minors;

(f)	Brodie: gift of $15,000 (see also gift to E Trust below);

(g)	E Trust: $100,000 plus one-eighth of residue (Sarah and Brodie and Brodie’s son are beneficiaries);

(h)	R Trust: debt to Richard forgiven.8 (beneficiaries of the R Trust are Nicholas and his four children).

[27]	Other gifts were $20,000 each to Nicholas’ former wife and Richard’s two stepsons (Catherine’s sons).9

The claims and opposition

Danielle

[28]	Under the codicil, Danielle receives two-eighths of the residue, which amounts to $612,500 (as a conservative figure) or $668,000 (the figure adopted by Danielle).

[29]	Danielle claims that the provision given to her under Richard’s will is not adequate for her proper maintenance and support in light of Richard’s alleged conduct and actions towards her. She says that Richard breached his moral duty to her when he failed to redress the alleged physical, psychological and sexual abuse he subjected her to and the resulting lifetime estrangement from Richard and her paternal family. Danielle claims she reached out to Richard on multiple occasions to provide support for her and he had rejected her on each occasion.

[30]	Danielle says she has made a modest success of her life. However, she is now retired. She says she lives in a “modest” house with a CV of $790,00010 with a mortgage of $30,895. Her only income is government superannuation which provides

8	Richard mistakenly believed the Trust owed him a debt. In fact, a debt of $812,000 is owed by the estate to the R Trust. This sum has been taken into account (i.e. deducted) in calculating the cash balance of the estate.
9	There were some other minor gifts which it is not necessary to mention.
10 Nicholas says that in fact the current market value of the house is $900,000.

her with $1836 per month. She says after payment of her outgoings she has a monthly deficit of -$1,094.87. That takes into account financial assistance from her youngest daughter. But she says that is a debt which will need to be repaid. She owns a 2009 car with an agreed insurance value of $15,400. She has a credit balance in her two savings accounts of $353 and $5,116.

[31]	She also has a significant collection of memorabilia in connection with a now deceased international popstar. [redacted] [A]n interview with Danielle records her as saying she has memorabilia worth more than $20,000.

[32]	Nicholas opposes Danielle’s claim. He refutes Danielle’s assertion that she was abused by Richard and asserts there is no truth or substance to the allegations. Nicholas says it was Danielle who alienated herself from all members of the family, especially Richard. It is Danielle’s case, on the other hand, that the estrangement and alienation arose from and were driven by Richard’s actions.

[33]	Catherine says that over the course of the 39 years during which she and Richard were happily married, the allegations that Danielle makes are the exact opposite of what Richard was like.

[34]	In monetary terms, Danielle makes a claim for provision similar to the value of two of the properties left to Nicholas in addition to her existing bequest. Their estimated values are $1.3 million and $835,000. When added to the existing bequest of $612,500 or $668,000 that makes a total of $2,747,500 or $2,803,000. These totals amount to approximately 37.1 per cent or 37.8 per cent of Richard’s estate. Nicholas’ position is that this claim is completely unsupportable, least of all in the circumstances of Danielle’s false allegations against Richard.

Sarah

[35]	Under the will, Sarah received one-eighth of the residue, which amounts to approximately $306,250. Along with her son, Brodie, and his son, she is a beneficiary of the E Trust which received $100,000 plus one-eighth of the residue. Sarah seeks further provision from Richard’s estate.

[36]	Sarah claims she had a close relationship with her father. Sarah says she does not have a relationship with Catherine and was not invited to the family home while Richard was with Catherine. But she says, nevertheless, Richard maintained contact with her over the years and there was no estrangement between the two of them. That is disputed by both Nicholas and Catherine. Regardless of the relationship, Richard provided Sarah with accommodation throughout her life either in his personal name or through the E Trust, which he established in 1999 for the benefit of Sarah and her son Brodie. This accommodation involved residential properties in both Australia and New Zealand, including the property in New Zealand in which Sarah currently lives. There were also weekly payments over the years, which I refer to later in this judgment.

[37]	Sarah says she has suffered from PTSD and chronic depression following sexual abuse when she was 15 years old (by a perpetrator who is not identified, at least in the evidence in this hearing). She says that she receives ACC payments and is attending weekly consultations with a psychologist as part of her on-going treatment.

[38]	Sarah is 63 years’ old. She has not worked since 2007 because of her medical conditions. Her sole source of income is the $300 per week from the E Trust. She says it is unclear if the Trustees of the E Trust will continue to provide her with that income following these proceedings. Sarah owns a 2010 Holden Barina worth around
$3000, furniture and household contents worth less than $12,000 and a life insurance policy worth $40,000. She pays approximately $30 per month to maintain the policy. She says she has been advised by her doctor that she needs hip surgery. She will need to rely on the public health system for this surgery.

[39]	Sarah submits the existence of the Trust is of limited assistance in determining the moral duty Richard owes her. She says that the uncertainty of where she lives and the discretionary nature of the E Trust means the inquiry into moral duty should not consider the E Trust. She refers to a clause in the Trust Deed, which enables the trustees to exclude anyone as a beneficiary. Further, she says Brodie is the final beneficiary and the vesting day is in 2039. She also says that despite the provision in the Trust Deed for her to become a trustee on the death of her father, the two present trustees, Nicholas and a long-time family friend, have not appointed her.

[40]	In monetary terms, Sarah says, like Danielle, she should receive an additional provision similar to the value of two of the residential properties gifted to Nicholas under the will (say $2,135,000). When added to the existing bequest of $306,250 the total is $2,441,250. This represents approximately 33 per cent of Richard’s estate.

[41]	Mr Bogiatto, for Sarah, submits that given the limited amount of cash available in the estate, the only practical way to give an effect to the further provision sought would be by making provision for the transfer to Sarah out of the real estate bequeathed to Nicholas.

[42]	Nicholas opposes Sarah’s claim. He says Richard had a challenging relationship with Sarah. But notwithstanding this, Richard provided considerable financial and other support to Sarah during his lifetime. This support included establishing the E Trust.

[43]	Catherine says that Sarah stayed with her and Richard once many years ago, but Sarah was abusive to her and Sarah has since had little to do with them. She also notes the financial support Richard provided to Sarah during his lifetime, as referred to by Nicholas.

Belinda

[44]	Belinda is the second of Danielle’s three daughters. She notes that she and her younger sister, Rachel,11 did not receive anything under the will or codicil. She contrasts this with her older sister, Anna (who was adopted out), Nicholas’ four children and Sarah’s son Brodie, who were all beneficiaries.

[45]	Belinda claims that she had a good relationship with Richard, which began in her younger years and continued into her twenties. But that relationship came to an end when her mother, Danielle, sought to file court proceedings against Richard in 1996 (no proceedings were in fact filed). Belinda’s position is that it was morally “correct” to support her mother, and as a consequence Richard became distant. She says that Richard rebuffed any attempts by her to contact him. She says that this

11	As noted above, Rachel settled her claim for $20,000.

estrangement has affected her ability to have a relationship with members of her paternal family.

[46]	She and her family moved to Australia “several years ago” and when she visited New Zealand, she attempted to catch up with her grandfather, but her attempts were denied.

[47]	Belinda says she is “somewhat estranged” from her mother, Danielle, and has no relationship with her father. She did not receive anything from the estate of her paternal grandmother and believes it is unlikely she will be provided for in any other will of any other family member.

[48]	Belinda says she is a 45-year-old mother of three children and a stepmother to another child. She is a Registered Nurse and lives in Queensland. She works there as a theatre nurse and her average net income over the last six years was $45,128.53. Her husband is also employed. Their joint annual net income is around $107,002. They live in their own home with two of their three children. The older one of the two needs surgery and Belinda and her husband will support her financially while she is off work.

[49]	The home is worth about $704,000 and has a mortgage of $524,553.85. Belinda says around a year and a half before the date of one of her affidavits (sworn 1 July 2019) she was diagnosed with a blood cancer. Time off work for both her and her husband has impacted on their finances. Belinda says she needs more surgery and will have to take time off work. She says at present, the joint income is fully consumed by ordinary living costs as a family and her medical expenses. Their total assets are
$884,405.28 with liabilities (including the mortgage) of $539,553.85.12

[50]	Belinda seeks an award of $625,000.

[51]	Nicholas opposes Belinda’s claim. He believes Richard’s lack of provision was due to Belinda (and her sister Rachel) not showing any interest in Richard. Alternatively, Mr Waalkens QC, for Nicholas, submits that if provision is to be made

12	Belinda’s updating affidavit as to her financial position was filed subsequent to the hearing with the consent of all parties.

for Belinda, the provision already made for Danielle ought to be reduced by a corresponding amount.

[52]	Catherine’s position is that Belinda only visited Richard once, some 30 years ago. Other than that, Belinda never contacted either her or Richard.

Brodie

[53]	Brodie seeks further provision from his grandfather’s estate. He received
$15,000 under the will and along with his mother Sarah (and his 15-year-old son with whom he does not have contact) he is a beneficiary of the E Trust which received
$100,000 under the will and one-eighth of the residue. Brodie has not filed an affidavit in support of his claim. The evidence is contained in affidavits from his mother, Sarah. Mr Fulton, for Brodie, submits this is explicable having regard to Brodie’s current circumstances. He is living in Australia, he is an alcoholic and as at 27 January 2021, he was living in a facility provided by a charitable institution called RETO Australia, which provides for his living, care and welfare. Sarah says this was arranged by a Community Welfare Centre for mental ill-health recovery. She says Brodie generally works toward recovery but after a long period of addiction there have been relapses requiring hospital treatment followed by his return to his therapy facility. Brodie is presently unemployed.

[54]	Sarah believes the therapy offered by Alcoholics Anonymous in New Zealand is far superior to what is offered by RETO Australia. Otherwise, private therapy in Australia would be in the order of AUD 350 per week.

[55]	Brodie was facing a criminal charge but was acquitted. But Sarah says there remains a minor charge on which he is required to report weekly for a period of nine months. (It is not entirely clear when the nine-month period started, but it seems it will come to an end in July 2021).

[56]	Sarah’s evidence is that Brodie does not know his biological father and was never maintained by him. It is not disputed that Richard, at least in the early days, had a very close relationship with Brodie and was something of a father figure. He paid the school fees for Brodie to attend a private school from the beginning of his school

days until secondary school. He provided financial and other support in various ways. When Brodie’s alcoholism became apparent, Richard initially tried to assist Brodie, but they eventually lost contact. Sarah believes Richard was disappointed in Brodie. Mr Fulton says that the event that damaged the relationship between Brodie and Richard was Brodie’s imprisonment for assault when he was about 20.

[57]	Mr Fulton submits that Brodie needs immediate financial assistance. He needs to pay (private fees) for his rehabilitation, as well as the cost to repatriate him from Queensland to New Zealand. Sarah says the estate has done nothing to assist Brodie nor has the E Trust. However, Mr Fulton accepts that correspondence from Nicholas demonstrates that the trustees did in fact offer to assist Brodie. It was not explained to the Court why this offer was not taken up on behalf of Brodie.

[58]	Mr Fulton also submits that a new and independent trustee should be appointed to control funds for Brodie.

[59]	Mr Fulton’s proposal is to now employ funds from present and future resources that would eventually belong to Brodie, notably his interest as a discretionary and final beneficiary of the E Trust. He says though, the Trust should retain its present residential property, in which Sarah is living. (The Court understands that on his return to New Zealand Brodie could, and would live with his mother). The funds Mr Fulton draws into his calculation are the $15,000 legacy to Brodie; the balance of the legacy of $100,000 to the E Trust ($100,000 less $20,500 paid = $79,500) and the Trust’s one-eighth share of the residue.

[60]	Mr Fulton says Brodie’s need cannot be supplied by his mother and Brodie’s father does not support him. In those circumstances, Mr Fulton submits Richard owed a moral duty to make present provision for Brodie.

[61]	Nicholas says Brodie has been well provided for and he is the final beneficiary of the E Trust which has a vesting date in 17 years’ time. He acknowledges there is a need now but says the balance of the funds due from the existing legacy to the E Trust along with the $15,000 left to Brodie, provide further avenues of immediate support. Nicholas further submits that the bequest of $15,000 to Brodie is in harmony with the

bequest in the codicil ($20,000) to Richard’s former daughter-in-law (Nicholas’ ex- wife) to whom he had been close and also the bequests of the same amount to his two stepsons. At least one of the stepsons had lived with Richard and Catherine when they first got married. He was aged 13 at the time. Richard had been particularly close to both of his stepsons.

[62]	Mr Waalkens submits that if further provision is to be made for Brodie, then as with Belinda’s claim, his mother’s testamentary provision ought to be reduced by a corresponding amount.

[63]	Catherine says that Richard told her he had supported Brodie in a private school education but later he became involved in drugs and criminal behaviour. She also notes (as does Nicholas) that Richard was hurt that Brodie had stolen an item of sentimental value which had belonged to Richard’s father (a set of callipers) and further that when Brodie moved to Australia in 2010, he made no effort to contact Richard.

The issues

[64]	The following issues require determination:

(a)	Did Richard owe each of the four claimants a moral duty of maintenance and/or support or further maintenance and/or support?

(b)	If so, did Richard breach his moral duty to each claimant?

(c)	In the case of Danielle, did Richard sexually, physically and psychologically abuse her; and if so, is his moral duty to provide for her greater as a consequence? and

(d)	If Richard did breach his moral duty to any one of the claimants, to what extent should the will and codicil be varied to remedy the breach?

Family Protection Act 1955

[65]	Section 3(1) of the Act sets out those who are entitled to apply for provision or further provision from the estate of any deceased person. Children and grandchildren fall within the terms of s 3(1).

[66]	Section 4(1) sets out the basis on which claims may be made. It provides, as is apparent from the wording of the section, that the Court has a discretion to order that a deceased’s estate make provision or further provision for those entitled persons who have made a claim. The onus of proof is on the claimant.13

[67]	The Court may refuse to make an order if the Court is of the view that the person’s character or conduct should disentitle him or her from the benefit of such an order.14

[68]	Counsel referred the Court to a large number of cases. But in the end, there was little disagreement over the legal principles. All counsel referred to the decision of the Court of Appeal in Williams v Aucutt, where the Court restated the correct approach to awards under the Act. The judgment of the majority notes that testamentary freedom remains except to the extent that there has been a failure to make proper provision for the maintenance and support of those entitled to  it.15  Richardson P, writing for the majority, endorsed the comments in the Court’s earlier judgment of Little v Angus,16 which referred to the well-settled principles in this way:17

The principles and practice which our Courts follow in Family Protection cases are well settled. The inquiry is as to whether there has been a breach of moral duty judged by the standards of a wise and just testator or testatrix; and, if so, what is appropriate to remedy that breach. Only to that extent is the will to be disturbed. The size of the estate and any other moral claims on the deceased's bounty are highly relevant. Changing social attitudes must have their influence on the existence and extent of moral duties. Whether there has been a breach of moral duty is customarily tested as at the date of the testator's death; but in deciding how a breach should be remedied regard is had to later events. Experience in administering this legislation has established the approach in this Court that on an appeal the Court will not substitute its discretion for that of the Judge at first instance unless there be made out some

13	In re Green (Deceased), Zukerman v Public Trustee [1951] NZLR 135 (CA) at 135.
14	Family Protection Act 1955, s 5(1).
15	Williams v Aucutt [2000] 2 NZLR 479 (CA) at [33].
16	Little v Angus [1981] 1 NZLR 126 (CA).
17	Williams v Aucutt [2000] 2 NZLR 479 (CA) at [35], citing Little v Angus, above n16, at 127.

reasonably plain ground upon which the order should be varied. All this is so familiar that authorities need not be cited.

[69]	The Court’s enquiry under s 4, namely whether there has been “proper maintenance and support provided” turns on whether there has been, what has come to be referred to as a “breach of moral duty”.18 The following guiding principle is set out in the judgment of the majority in Williams v Aucutt:19

… The test is whether adequate provision has been made for the proper maintenance and support of the claimant. Support is an additional and wider term than maintenance. In using the composite expression, and requiring "proper" maintenance and support, the legislation recognises that a broader approach is required and the authorities referred to establish that moral and ethical considerations are to be taken into account in determining the scope of the duty. Support is used in its wider dictionary sense of "sustaining, providing comfort". A child's path through life is supported not simply by financial provision to meet economic needs and contingencies but also by recognition of belonging to the family and of having been an important part of the overall life of the deceased. Just what provision will constitute proper support in this latter respect is a matter of judgment in all the circumstances of the particular case. It may take the form of lifetime gifts or a bequest of family possessions precious to its members and often part of the family history. And where there is no economic need it may also be met by a legacy of a moderate amount. On the other hand where the estate comprises the accumulation of the family assets and is more than sufficient to meet other needs, provision so small as to leave a justifiable sense of exclusion from participation in the family estate might not amount to proper support for a family member.

[70]	The test is whether, objectively considered, there has been a breach of moral duty by the deceased, judged by the standards of a wise and just testator or testatrix.20

[71]	Two further Court of Appeal judgments referred to by counsel deserve mention. They are both helpfully summarised in the judgment of Thomas J in Carson v Lane.21 The first of the cases is Auckland City Mission v Brown.22 The value of the estate was $4.6 million, and the testator left his daughter assets worth approximately $190,000. Specific bequests were made to a friend of the testator, an employee, a nephew and the Cancer Society and the residue was divided between the Auckland City Mission and the Salvation Army. During the testator’s life he had made

18	Williams v Aucutt, above n 17, at [38].
19	At [52].
20	Little v Angus, above n 16, at 127.
21	Carson v Lane [2019] NZHC 3259 at [76] – [82].
22	Auckland City Mission v Brown [2002] 2 NZLR 650 (CA).

provision for his daughter, which included assistance in setting up a business which continued to provide employment for the daughter and her husband. The daughter was in a reasonable financial position and did not have health problems or any special needs. The testator provided reasons for the provisions he made in his will, including an adverse view of the daughter’s husband and also by providing for her children, that removed the need for her to provide for them.

[72]	In the High Court, the Judge considered a wise and just testator would have wanted to ensure his daughter and family were adequately housed, to secure business premises for her and provide an income independent of the business. The Judge set that sum at $1.6 million.

[73]	The Court of Appeal considered the Judge erred in principle and the award was far in excess of what was required to remedy the breach under the Act.23 The Court noted that the courts were generally awarding between 12.5 per cent and 20 per cent of an estate to a dutiful child not in financial need and that the Act was more often being used to recognise the special bond between parent and child.24 The Court emphasised that the order must be limited to the amount required to repair the breach of moral duty and it was only to that extent that the will would be disturbed. The Court reduced the award to $850,000 plus an amount to clear a loan. This amounted to just under 20 per cent of the net estate.25

[74]	The second decision of the Court of Appeal is Henry v Henry.26 The Court emphasised that Auckland City Mission v Brown was not to be taken as authority for the proposition that provision of sufficient money to purchase a home and provide a contingency fund is some kind of benchmark or default standard.27 The Court must conclude that a claimant has established that he or she has not received adequate provision for proper maintenance and support.

23	Auckland City Mission v Brown, above n 22, at [32].
24	At [33].
25	At [45].
26	Henry v Henry [2007] NZCA 42, [2007] NZFLR 640.
27	At [78].

Unfairness/disparity of benefits

[75]	In Williams v Aucutt, the majority endorsed the comment in Re Leonard that mere unfairness is not sufficient and it must be shown in a broad sense that the applicant has a need of maintenance and support.28 In Talbot v Talbot,29 the Court of Appeal, referring to Williams v Aucutt, noted that the Court’s power under the Act does not extend to rewriting a will, and testators remain at liberty to do what they like with their assets and to treat their children differently30 (unless there is a breach of moral duty as referred to above).

[76]	Further, in Williams v Aucutt, the Court of Appeal referred to its earlier decision in Re Shirley, where the Court held that the High Court’s emphasis on the disparity of benefits was not appropriate and that the issue was whether the provision made for each sum was adequate in the context of the person’s own means, obligations and other relevant circumstances.31

[77]	In Henry v Henry, the Court noted that a mere perception of unfairness was not enough. The Court is not to override the testamentary freedom of the testator if the test is not met, even if it appears that a fairer distribution of the estate would have been desirable.32 The approach is no different in the case of financial need.33

[78]	In Williams v Aucutt, Blanchard J agreed with the decision of the majority but added some observations of his own. His judgment included a reminder that the Court is not authorised to rewrite a will merely because of perceived unfairness and that it is not for a beneficiary to have to justify the share that he or she has been given.34

[79]	These statements are of relevance in this case where Nicholas received the residential properties in addition to a two-eighths share of the residue.

28	Williams v Aucutt, above n 17, at [37] citing Re Leonard [1985] 2 NZLR 88 (CA) at 92.
29	Talbot v Talbot [2017] NZCA 507.
30	At [76].
31	Re Shirley CA155/85, 6 July 1987.
32	Henry v Henry, above n 26, at [55].
33	At [56].
34	Williams v Aucutt, above n 17, at [68].

Inter vivos contributions

[80]	Where there are discretionary trusts,  the  Court  of  Appeal  held  in  Flathaug v Weaver,35 that in assessing the strength of the moral claims of the beneficiaries, the entitlements under the trust must be considered. In that case the Court was considering the effect of a testator leaving his entire estate to a family trust, which excluded the daughter as a beneficiary. The Court held:36
We see no reason why, in a proper case, an entitlement to benefit under a Trust, even of a fully discretionary nature, should not be taken into account in assessing a testator’s duty to make provision.

[81]	Mr Bogiatto, for Sarah, also referred the Court to Re Hardie where the Court said:37

I agree with Mr Patterson that the Testator could not discharge his moral duty towards the sons by nominating them as beneficiaries of the family trust. … They have no enforceable rights to either the assets or income of the trust. They will rely for any future benefit upon the discretion of [the trustees]. Inevitably this litigation has generated some discord between the brothers. John himself is placed in a difficult position both as trustee as beneficiary. It is unfair to all three brothers to leave them in a position of inter-dependence with the prospect of on-going conflict over satisfaction of future financial requirements.

[82]	Another example referred to by Mr Bogiatto where a share of the residue was to be held on trust is Creser v Creser.38 In that case, the testatrix left the residue of her estate to three of her four children in equal shares. However, she directed that the share of one of them be held on trust for his maintenance and support during his lifetime and on his death for any children he may have. The reason why the testatrix did so was because she was concerned that he had substantial creditors and that therefore leaving capital to him would benefit only his creditors.

[83]	The Court accepted counsel’s submission that the testatrix’s intentions miscarried.39 She was mistaken as to the son’s financial position and hence his need for protection. As a result, she created a trust, which the Court accepted breached her

35	Flathaug v Weaver (2003) 22 FRNZ 1035 (CA).
36	At 1042.
37	Re Hardie [2002] NZFLR 229 (HC) at [37].
38	Creser v Creser [2006] NZFLR 850 (HC).
39	At [41].

moral obligation because the likely result was that the son would not be paid his share of the estate.

[84]	I see the decision in Creser v Creser as confined to its particular facts. In this case, the position of Sarah and her son Brodie, as discretionary beneficiaries under the E Trust is to be taken into account. But as the cases demonstrate, the assessment must be made in the context of what the Trust provides.40

Allegation of abuse and alleged resulting estrangement

[85]	Mr Jefferson QC, for Danielle, relied on Crosswell v Jenkins in support of his submission that where an estrangement has been brought about by the deceased’s own conduct, the moral duty to repair it can be compelling.41 In that case, the High Court considered the issue of estrangement of a child from the testator. The Court said:42

The claim of a child from whom the deceased has had a long estrangement cannot be as strong as that of one with whom he has had a close relationship. On the other hand where the estrangement is of the deceased’s making, either because he has actively brought it about, or because he has not exercised his particular ability and responsibility to heal it, the need and moral duty are compelling. What the deceased has failed to do in his lifetime to accord recognition to his own family, he ought to do in his will. And if he does not the Court ought to do it for him.

[86]	The issue of sexual misconduct by a testator towards a claimant was considered in Re A,43 by Jeffries J and in In re W; Z v W.44 In both cases, sexual misconduct was found to have occurred and as a result strengthened the claimant’s case for increased provision from the estate. In re A the Court said:45
What the Court accepts is that a testator who recognises that his behaviour in the past has been wrong and permanently damaging to a person to whom he owes a moral duty in the very broadest sense, as well as testamentary, then he is entitled to make an effort to repair by way of special recognition of a testamentary nature.

40	See also Carson v Lane, above n 21 at [92].
41	Crosswell v Jenkins (1985) 3 NZFLR 570 (HC).
42	At 575.
43	Re A [1988] 4 FRNZ 668 (HC).
44	In re W; Z v W FC Hamilton FP634/02 23 September 2004.
45	Re A, above n 43, at 673.

[87]	In Joan v Mary,46 the claimant was the daughter of the testatrix. The claimant had been sexually and physically abused by her father. The testatrix was aware of the abuse but failed to acknowledge it, causing estrangement between the claimant and the testatrix.47 The High Court said:48
… proven parental abuse of a child during his or her upbringing may bear on the content of a parent’s moral duty for the purposes of assessing the distribution of an estate. But I reiterate that this is not about achieving parity
– it is about providing an adequate remedy, to the extent that it remains necessary, for the breach of moral duty that all parents have to support, recognise, protect and care for their children.

[88]	A note of caution was sounded in Ace v Guardian Trust and Executors Co Ltd, where the allegation was made against a person who had died and was not able to respond. Callen J said:49
I respectfully adopt and agree with that statement of the way in which claims under this new statute should be approached. The rules applicable to claims against deceased estates referred to by both the learned judges in the passages I have just read have been evolved by experience and common sense, because, when one of two interested parties whose interests in the material matter diverge, and who, between them, know practically all that is known, and nobody else knows, is dead, and there is still business outstanding between them, everybody is really at the mercy of the survivor, and the survivor is a deeply interested party; and the natural self-interest and human imperfections to which we are all prone are such that, when you get that kind of situation, great caution and even suspicion, is called for if justice is to be done and an unjust imposition is to be avoided.

[89]	However, in RDB v RFK,50 the allegation against the testator was first made during his lifetime. Judge Southwick QC noted that importantly the testator had an opportunity to respond to the allegation.51 Additionally, there was a significant body of expert evidence with the relevant witnesses having treated the claimant over a lengthy period of time and further, the testator went beyond omitting provision for the claimant in his will. He fabricated a “careful mistruth, deliberately misleading his lawyer” to take the claimant out of his will.52

46	Joan v Mary [2012] NZHC 1830.
47	At [9].
48	At [14].
49	Ace v Guardian Trust and Executors Co Ltd [1948] NZLR 103 (SC) at 105.
50	RDB v RFK [2013] NZFC 591.
51	At [61].
52	At [71].

[90]	A final relevant consideration is the onus of proof to be applied where there are allegations of sexual misconduct or other abuse by a testator towards a claimant. It is a well-accepted principle that the onus is on a claimant to prove that a deceased was in breach of their moral duty as at the date of death by failing to make adequate provision for the claimant’s proper maintenance and support.53 In W v W, the Court of Appeal considered the standard of proof to be applied where sexual abuse is alleged to have occurred: 54
… Although the judgments in M v Y mainly centre upon the approach to be taken where allegations of sexual abuse in a custody case are neither positively proved nor expressly rejected, the Court unquestionably accepts that the decision-make[r] “should apply the civil standard of proof, commensurate with the gravity of the allegation”.55 This was not to say that a higher standard of proof applied in the sense that a standard somewhere between the civil and criminal standards was applicable. Rather the civil standard remained to be applied, but with the gravity of the allegation to be borne in mind.

(citations omitted).

Percentage-based approach?

[91]	Counsel referred the Court to a large number of cases where a percentage- based approach was taken. It appears that that approach is adopted where the estate is small and also where there is not just one disadvantaged claimant. A percentage-based approach does not seem to be appropriate where the estate is a large one such as is the case here. As Thomas J said in Carson v Lane,56 that does not fit with the duty under the Act to assess what is adequate for the proper maintenance and support of the claimant. Percentages derived from other cases should not be treated as placing some sort of cap on awards57 nor used as a means to inflate an award in the case of a large estate.58 Further, as Thomas J pointed out, reliance on percentages adopted in other cases can also create a misleading impression, for example when there is a separate inter vivos trust.59

53	In re Green (Deceased), Zukerman v Public Trustee, above n 13, at 135.
54	W v W [2004] NZFLR 150 at [9].
55	M v Y [1991] 1 NZLR 527 (CA) at 533.
56	Carson v Lane, above n 21 at [94].
57	Moon v Carlin HC Auckland CIV-2010-404-5486, 23 February 2011 at [41].
58	Carson v Lane, above n 21 at [94].
59	At [94].

Grandchildren

[92]	Counsel also referred to a large number of cases involving grandchildren. It is sufficient to refer to just a few. The Court of Appeal in Re Horton, said that it would be a mistake to lay down any more detailed rules than those found in s 3(2).60 The Court of Appeal also indicated that a grandchild’s need for provision (if any) must be measured in light, inter alia, of the ability of the grandchild’s own parent to provide for him or her.61

[93]	Mr Locke, for Belinda, referred to the judgment of Gallen J in Estate of JN Mooney,62 where the Judge said:

Counsel referred me to various decisions where the position of grandchildren has been considered. These all amount to illustrations of the general principle that the exercise of a moral obligation and the extent of that obligation towards a grandchild will depend on the circumstances of the case and in any event, such rights as a grandchild will have will, generally speaking, be subsidiary to the prior rights of parents who may normally be expected to make provision in due course for those children for whom they have responsibilities. In the majority of cases, it will not be appropriate to make provision for grandchildren because the primary obligation to provide for them rests upon their parents. At the other end of the spectrum, there will be cases where a grandparent may have taken full responsibility for a grandchild and in such case, moral obligation may very nearly equate to that owed to a child.

[94]	Mr Waalkens submits this is not such a unique case.

[95]	Where both grandchildren and their parents are claimants under the Act, as is the case here, and adequate provision can be made for the proper maintenance and support of all parent claimants, there should be some particular circumstance identified before it would be appropriate to grant provision directly to the grandchildren.63      Mr Waalkens submits that this is not one of those cases where Danielle and/or Sarah, as the parent, will be unable to leave provision for their child such that the Court may then be required to look to provision from that of the grandparent. Significant provision was made for both Danielle and Sarah.

60	Re Horton (dec'd) [1976] 1 NZLR 251 (CA) at 255.
61	At [255].
62	Estate of J N Mooney HC New Plymouth A71/85, 14 November 1986 at 401.
63	Carson v Lane, above n 21 at [103].

[96]	Mr Waalkens also relies on DH v Public Trust,64 in resisting the claims by Belinda and Brodie. In that case, one of the testatrix’s grandchildren, SM, lived with her for a period of eight years. The other, DH, was placed in State care and had limited contact with her grandparents. Under the grandmother’s will, DH was left $2,000 whereas SM was left the residuary of the estate (approximately $300,000). The mother of both grandchildren was left the sum of $2,000. The Court increased that award so that in total $37,000 (out of an estate of $317,000) was awarded to the mother. In relation to the claims by the grandchildren, the Court found:65

(a)	Notwithstanding DH’s personal circumstances, the primary obligation to provide for her rested with her mother;

(b)	No moral duty to DH was, accordingly, owed; and

(c)	The testatrix’s preferential treatment of the other granddaughter, SM, with whom the deceased had a close relationship, was held to be entirely appropriate.

[97]	Mr Waalkens draws an analogy between the close relationship between Richard and Nicholas’ four children and also Danielle’s oldest daughter with SM in the above case; and compares the two grandchildren claimants in this case with DH’s circumstances regarding the lack of contact with their grandfather and thus the legal consequences.

Estoppel

[98]	In the course of the hearing, Mr Waalkens sought leave to file an amended statement of defence adding a further defence of estoppel based on Danielle’s withdrawal of her allegations made in 1996 and her acknowledgment that the allegations against her father were unjustified. Mr Jefferson does not consent to the application but equally does not oppose it, acknowledging that the factual foundation for the defence was apparent from the evidence. That said, he does not accept that estoppel can be raised as a defence in this proceeding.

64	DH v Public Trust FC Manukau CIV-2004-470-390, 16 September 2006.
65	DH v Public Trust, above n 64, at [48] and [49].

[99]	Having regard to the lack of opposition and the lack of any prejudice, I give leave for the amended statement of defence to be filed.

[100]	There is longstanding authority to the effect that any contracting out agreement purporting to settle any future claims arising under the Act is void or voidable as contrary to the public policy embodied in the Act and its predecessors.66 I consider the acknowledgment signed by Danielle withdrawing her allegations is somewhat akin to contracting out. However, the fact that she withdrew her allegation is, in my view, relevant as one of the factors when it comes to assessing the truth of the allegations she makes.

Discussion

Danielle

[101]	Danielle makes detailed allegations of physical, sexual and emotional abuse starting in approximately in 1957 and 1958. At that time, Danielle would have been around five or six years’ old. She says she recalls Richard hitting her, rubbing her face into her wet bed sheets after she had wet the bed and calling her names. She recalls in approximately 1959 or 1960 Richard hitting her for coughing from asthma and keeping the household awake. She says she recalls a few years later Richard smashing her music records with a hammer. Beatings were accompanied by taunting, humiliating and belittling words. He would hit her for any little thing.

[102]	Between around 1961 to 1963, when she began puberty, she recalls Richard starting to look at her developing breasts. Her father restricted what she could wear and where she could go and what she could do. She says in approximately 1964 she recalls Richard beating her and cutting her hair off after he saw her speaking with a boy who delivered milk. Around the same time, she says she recalls Richard telling her to lift her dress and show her legs and being told she was getting fat. She says she recalls at this time receiving a beating from Richard and attending school the following

66 Gardiner v Boag [1923] NZLR 739 (SC); Parish v Parish [1924] NZLR 307 (SC); Re Julso [1975] 2 NZLR 536 (SC); Public Trustee v Dillon [1940] NZLR 874 (SC); and Matthews v Phochai [2020] NZHC 3455 AT [38].

day with weeping legs. She says she told the school nurse and her father was arrested by the Police.

[103]	Between 18 May and 21 May 1965, when Danielle was aged around 12 years 10 months, she left her home and stayed with a 23-year-old man. There is a report of the then Child Welfare Services, which I will come to shortly.

[104]	Danielle says that in October 1965, when she and her mother accompanied Richard to Melbourne, Richard took her into the parents’ bedroom in the motel. She was forced to remove her lower clothing and her father pushed his fingers into her vagina telling her mother, who was present, that the way he could stretch his hand around indicated that she must be having regular sex. She says her mother tried to stop him but was not able to do so. She says this was not the first time her father had done this. It had happened before after her father saw her talking to a boy from a neighbouring property.

[105]	She says that on their return to New Zealand, her father continued to hit her and again tried to internally examine her. The latter event occurred after her father took her to three different doctors for internal examinations following the Melbourne trip. She says that things were growing steadily worse between her parents. Her father would appear at the front gate of her school and would tell her that if she did not get into the car with him, he would kill her. She says this was despite the fact that her mother would be waiting at the back entrance having earlier told her that if she did not go with her, she would beat Danielle. She says that when she was about 15 years old her mother left her father and she says the father threatened her that if she did not come to live with him that he would not have anything to do with her again.

[106]	She says there was a custody dispute in the Family Court sometime during 1967. The outcome was that her father was given custody of Nicholas and her mother was given custody of Danielle and Sarah. After arguments with her mother and, she says, needing to be free of the demands of her mother, Danielle moved out of home. After leaving home she says she attempted to visit her father at his business, but he made it clear he did not want to speak to her.

[107]	Towards the end of 1969, when she was about 17, she moved to Sydney. Somewhat inconsistently with her evidence that her father had rejected her she says some months later she received a letter from her mother saying her father had come to Sydney because he was worried about her living there. I will come to the letter that Danielle sent to Richard from Sydney in the next section of this judgment.

[108]	Danielle gave birth to her oldest daughter, Anna, in 1972 but did not remain with Anna’s father. In 1973, she returned to New Zealand and got married. Her husband adopted her daughter. She says after her return she decided to telephone her father at his work. She says he refused to acknowledge her.

[109]	She says in around 1983 or 1984 she again reached out to her father, this time seeking financial help. She says her father said he would not help her because of the “nasty letter” that she had written from Sydney some years earlier.

[110]	Danielle says that in around 1992, on discovering that her youngest daughter, Rachel, had been sexually abused, this brought to the surface the pain of her own sexual abuse by her father. She spoke to a lawyer, her mother provided a statement (I will return to the mother’s statement) and she spoke to Dr Gail Ratcliffe, a registered psychologist, who provided a report. The solicitor she had consulted approached her father’s lawyer, making a claim on Danielle’s behalf of $1.5 million.

[111]	Richard vehemently denied the allegations. There was a series of letters between the lawyers with Richard’s lawyer saying that Richard would rather Danielle went to the police to lay a complaint than settle with her because he was concerned about being placed in a position where any concession made by him might be interpreted as an acknowledgment that there was some substance in the allegation of sexual abuse. In the end, Richard paid Danielle $20,000 with Danielle withdrawing the allegations of abuse and neglect, acknowledging they were unjustified and undertaking not to raise the allegations again.

[112]	There is limited documentary and independent evidence available to assist in considering whether Danielle has discharged the onus in terms of her allegations of

physical, emotional and sexual abuse by Richard. Evidence which contradicts her claims includes the following.

[113]	Nicholas vigorously contests the allegations she makes. He says there is no truth or substance to them. He says at no time did he ever see or hear about their father physically or otherwise abusing Danielle in the ways that she describes. He says having said that, their father did initiate corporal punishment from time to time in the form of a smack to each of the three children when they were naughty, but it was certainly not “over the top” or anything remotely like the degree of abuse and criminal behaviours alleged by Danielle. In reply, Danielle says that she saw Nicholas get beatings and not smacks as he claims and he witnessed some of her beatings.

[114]	Nicholas says Richard appeared to love Danielle as he did Sarah and himself. Annexed to his affidavit is a note Richard sent home to Delia when he was overseas when they were younger. It includes the following: “Give the kids a great big kiss and tell them Daddy loves them all …”.

[115]	Nicholas says he is quite convinced the evidence of alleged abuse is utter exaggeration and an example of the fantasy world in which Danielle lived. He says that from a young age she lived in a world of fantasy where she obviously enjoyed creating acrimony and controversy. He says Danielle caused havoc in the household from an early stage.

[116]	While Nicholas was very close to his father and I take that into account, his evidence and comments are consistent with the way Danielle’s school Principal described her at the age of 12 years. I will come to the Principal’s report shortly.

[117]	I also bear in mind that from 1962 to 1966 Nicholas, who is around 15 months younger than Danielle, attended a boarding school out of Auckland. However, he returned home during school term breaks and for the Christmas break. He says he spent each holiday back at the family home in Auckland. The conduct Danielle describes, as I understand her evidence, was ongoing. I consider it unlikely Nicholas would not have been aware at least of the alleged physical and emotional abuse had it occurred. He certainly believes he would have been.

[118]	There is a report from a social worker of the then Department of Social Welfare following Danielle being located  after she  went missing from her home between   18 May and 21 May 1965. She was then aged 12 years 10 months. Her parents contacted the Police. The report records that she was “found to have been sheltered by a 23-year-old man …”. Another report from the time records that “sexual intercourse took place”. In her evidence, Danielle says she does not recall there being any sex. The case report of 1 June 1965 records:

5.	Mrs Brown appeared not to realise the gravity of the situation and gave the impression of a spectator to a situation she was unable to handle.

6.	Mr Brown appeared to be genuinely concerned about Danielle.

7.	It is difficult to give a true assessment of Danielle’s reactions as her parents were reluctant to allow her to be interviewed except in their presence. She is an exhibitionist and on first acquaintance appeared to be proud of her exploits. Later she became more subdued but at no time did she show any real remorse.

…

12.	… She is tall, well-developed and looks older than her age.

12. Mr and Mrs Brown describe Danielle as being independent but selfish, greedy and jealous.

[119]	This description (along with Nicholas’ description of Danielle) has support from a description of her by her then school Principal. The Social Welfare report, referred to above, itself refers to a school report of 25 May 1965. As part of that report there are the following comments from her school Principal:

Danielle has always been a problem – is mature and very developed for girl of 12. Lives in a world of fantasy + it is difficult to believe anything she says.

At end of last term told her class she thought she was pregnant.

Told me she has invented the tale – but still wanted the class to believe it was true. She is considered cruel by the staff, who say she finds each child’s  weakness and + “picks on the child” unmercifully.

Loves to be the centre of attraction + I think will do + say anything to create a sensation.

I doubt if she should return to a small school such as this.

[120]	On the other hand, there is some support for Danielle’s allegations on the Social Welfare file. There is reference to an apparent lack of unity between the parents and their control of Danielle and that Mr Brown appears to have been harsh in his punishment of her. There is a hearsay statement that “from sources outside the family” it is learnt that Mr and Mrs Brown have not been happily bonded for some time past. The report says that Mrs Brown has suspected her husband’s fidelity and has shared her attitude in this matter with Danielle. The report also goes on to say “it is believed” that fairly recently Mr Brown was arrested for assaulting his wife, but she refused to give evidence when the case was called.

[121]	There is a report a year later on 22 June 1966 again on the Social Welfare file which records a conversation the social worker was said to have had with the family’s landlady. It is recorded that the landlady said that Richard had his family completely terrified of him and that on several occasions she had seen him using physical violence on Danielle. However, the nature of that “physical violence” is not described. It is not apparent, for example, whether it was in the nature of smacking described by Nicholas or whether it was something more.

[122]	The report also records that “Danielle has evidently confided in this woman and told her that her father had on one occasion internally examined her to make sure that she had not had any relationships with men”. On its face, this would appear to provide support for Danielle’s allegations. But it also needs to be considered in the context of the school Principal’s report and the way in which she described Danielle.

[123]	There is another report of 19 October 1967, where it is stated that the mother made an allegation that her husband had examined her and Danielle to see if they had had sexual relationships with men. It is to be noted that this report was prepared in the context of the acrimonious custody proceedings. Mr Brown’s denial is noted in the report.

[124]	I now come to the letter that Danielle wrote to Richard from Australia. Nicholas says that their father had told him that he had made an effort to contact Danielle when he visited Sydney and had gone to her address in Darlinghurst. Nicholas says his father told him he encountered a man sitting on the step of Danielle’s

apartment block and the man told him that he would have to “wait his turn” to see her. Nicholas says his father told him it appeared that Danielle may have turned to prostitution and he had been upset about that. Nicholas later learned from his father that he had passed on those concerns about Danielle to their mother. It seems that message got back to Danielle who then wrote a letter to her father.

[125]	Before I come to the content of the letter, I note that Danielle strenuously denies that she was involved in prostitution and says that, in any event, she was living in an entirely different area of Sydney at the time and worked in normal paid employment during the day. The letter which Danielle wrote is still in existence. Nicholas says their father was deeply hurt by allegations made against him by Danielle.

[126]	Danielle, on the other hand, says she wrote the letter because she was hurt by what her father had apparently said on his return to New Zealand about her occupation. She claims the letter, as exhibited, is incomplete. She says page 1 is missing and she also believes that some of the content of the letter has been removed. The copy letter exhibited runs to two pages. At the top of page 1 it does have a salutation of sorts. It commences, “You low horrid bastard”. The part sentence at the foot of page 1 continues in a coherent way at the top of page 2. At the end of page 2 there is a sign off by Danielle. It therefore does not appear, contrary to Danielle’s assertion, that part of the content has been removed. As to whether page 1 is missing, as noted the letter also begins with some sort of greeting. Beyond that the Court is not in a position to determine if the first page is missing.

[127]	In the letter, Danielle does not make any allegations that her father sexually abused her as a child. She refers to “beltings” she got and hard fists but does not suggest her father sexually abused her. She does make allegations about his moral standards. She refers to what she says is his “sexual depravity” but that is in the context of her allegation that he has had “cheap (sic) woman”. She says in the letter that if she comes home again it will only be to visit her mother.

[128]	Similarly, when Danielle wrote to her sister, Sarah, more recently by email on 22 February 2010, she makes no reference to sexual abuse. In the email, she compares

her situation with her sister’s situation referring to the fact that Sarah had been given “every home she ever slept in over these years without paying rent or mortgages”. She says, “I am brought up in a violent environment …”. And I divert here to discuss that point. It is to be noted that she refers to the environment as violent rather than there being physical violence directed at her. The reference to a violent environment is consistent with Danielle’s evidence that her parents’ marriage was very abusive and at times violent. There is also reference in a social worker’s report of June 1966 to the Police having called the social worker following Mrs Brown’s call to the Police the previous evening to report an assault on her. However, this reference should be contrasted with Nicholas’ evidence. He describes his parents relationship as having its “ups and downs” especially with his father working long hours and weekends. He says that at times this did create tensions.

[129]	Returning to the issue of sexual abuse, it might be thought that, having regard to Danielle’s evidence that she had never discussed her childhood with anyone other than her sister and two ex-husbands (this comment was said in the context of talking to her lawyer before the lawyer’s letter to her father alleging abuse), she might have mentioned sexual abuse to her sister in an email given that she was purporting to compare her life with her sister’s life. But there is no mention of alleged sexual abuse in the emails.

[130]	In the same vein, there is further email correspondence between Danielle and Sarah in 2010. They are discussing their father. Sarah says: “Yes well we have both suffered spiritually and emotionally”. Nowhere in the conversation which occupies just over five A4 pages does Danielle suggest that the alleged abuse of her went further.

[131]	I return to 1995, when Danielle saw Dr Gail Ratcliffe, psychologist, prior to making her claim through her lawyer against her father for $1.5 million. Dr Ratcliffe has not provided sworn evidence. Her report of 14 February 1996 is annexed to one of Danielle’s affidavits. She did not treat Danielle. She interviewed her for a period of two hours in November 1995 and then later that month either for a further hour or for a further two hours. The length of time is not entirely clear. Dr Ratcliffe also relied on a statement from Danielle’s mother, Delia, which she later withdrew. I will come to that statement shortly.

[132]	Dr Ratcliffe says that Danielle described what appeared to her to be an, as yet undiagnosed, obsessive compulsive disorder. She also says that Danielle’s account of the consequence of her abuse is consistent with a diagnosis of post-traumatic stress disorder. She purports to comment favourably on Danielle’s veracity. That is objectionable (at least in a report to be used for Court purposes). She also refers to having appeared as an expert witness in cases for victims of physical and sexual assault and goes on to say the Court accepts that if post-traumatic stress disorder can be established the trauma has occurred.

[133]	I note that Dr Ratcliffe has previously been criticised by the Court of Appeal for drawing the same conclusion in R v Bailey.67 In Bailey the Court of Appeal said of Dr Ratcliffe:

…the evidence went too far, in that the expert was permitted to express the opinion that there was no available cause for the onset of PTSD other than the sexual abuse. Thereby the expert trespassed into the ultimate issue in the case and at the same time commented upon the credibility of the complainant.

[134]	I turn to the mother’s document which Dr Ratcliffe relied on. Danielle’s evidence is that her mother wrote and signed a statement in 1995 relating to events in Danielle’s childhood. It appears that is the document referred to by Dr Ratcliffe. Danielle says prior to the statement being typed up, her mother made notes in her own handwriting. Both the handwritten notes and the typed document are in evidence. However, there is a further document, being a one-page handwritten letter from the mother dated 16 March 1996 addressed “To who [sic] it may concern”. It appears the letter is longer than one page (at the bottom of the page is the word “overleaf”). However, there is now only one page apparently in existence.

[135]	Nicholas says that this letter was given to him by his mother on the date it was written, 16 March 1996. Nicholas says his mother told him that at the time she had been forced by Danielle to make some statement critical of, and contrary to, the father’s interests and that the mother wanted to “clear the air”. Nicholas says she told him that she would give him the letter and that he was to give it to his father. Nicholas identifies the letter.

67	R v B [2013] 2 NZLR 777 (CA) at [21].

[136]	In her handwritten letter (which I will refer to as the withdrawal letter) Delia says she wrote a letter which “my daughter wrote me and she stood over me and first made me sign with the offer of money to help her in the courtroom”. Delia says she asked Danielle for a copy of the letter to take to her solicitor as he wanted to know what she had got herself into. Delia says in the withdrawal letter, “Some evidence was manufactured. Have no recollection of it”. She says Danielle promised to pay her some money. A specific amount was not mentioned. She had received no money as at the date of the withdrawal letter. Delia continues, saying that she does not want any harm to come to her ex-husband and she did not understand what it was all about. She says she wrote the withdrawal letter of her own accord.

[137]	It appears that the withdrawal letter is in respect of the typed statement of the mother which was relied on by Dr Ratcliffe.

[138]	On its face, there is nothing to suggest that the withdrawal letter is not a genuine withdrawal. Danielle says however that her mother’s statements were not manufactured, and she did not force her mother to write the statement.

[139]	Moving on to the 1996 allegation,  Danielle’s lawyer  wrote to  Richard  on   6 March 1996 and identified three options: complaint to the Police; ADR resolution or civil proceedings for damages. By 20 May 1996, Danielle was seeking $1.5 million in damages. In that letter, she signalled a willingness to settle for $775,000, otherwise proceedings seeking $1.5 million would follow.

[140]	On 9 July 1996, Richard’s lawyer wrote:

We are obliged to make one matter clear at the outset and that is that Mr Brown denies any suggestion of sexual abuse as set forth by Danielle and he is by virtue of the allegation having been made placed in a position that any concession made by him might be interpreted as an acknowledgment that there is some substance in the allegation.

Mr Brown is not prepared to do anything which would be construed as such an acknowledgment and Danielle should be quite clear that her father is prepared, if necessary, to see the matter go to court rather than allow any such acknowledgment to arise even if by inference.

[141]	In the same letter, the lawyer refers to the considerable upset and shock the letter that Danielle had written when she was aged 17 (the letter from Sydney) had

caused him saying: “It is a measure of the depth of Mr Brown’s hurt that he has to this day preserved the letter”

[142]	Later that month and the following month, Richard’s lawyer stated in correspondence that the estrangement between Richard and his daughter was initiated by Danielle and reinforced by the letter which she wrote to him from Australia.

[143]	On 1 October 1996 Richard’s lawyer again wrote to Danielle’s lawyer. The letter included the following:

You are aware that our client vehemently denies the allegations …

He acknowledges that his position as your client’s father imposes upon him a duty to be understanding and he is prepared to consider his position as a “wise and just testator” in a detached fashion.

[144]	There was then a reference to a revision of his will with the letter stating:

He will make provision for your client and her children. The nature or amount of that provision will not be fixed at this time because there are many considerations that will influence it.

[145]	The sum of $20,000 was proposed by Richard’s lawyer on the basis a retraction of the allegations was required.

[146]	On 7 October 1996, Danielle’s lawyer counter-offered the amount of $27,000 and enclosed a draft settlement deed drafted by him. The draft recorded that Richard “strenuously denies” the allegations of physical and sexual abuse during Danielle’s childhood and adolescence. It also recorded that Richard claims Danielle chose to remain outside the family group but acknowledges that she has not had some of the advantages that her brother and sister enjoy. It further recorded that Danielle “withdraws all the allegations against Richard and agrees not to institute proceedings against him now or in the future in respect of those allegations”.

[147]	On 6 November 1996, Richard wrote to his lawyer enclosing a cheque for
$20,000 with clear instructions that it was only to be paid out subject to Danielle unreservedly withdrawing the allegations of abuse and neglect and undertaking not to raise the allegations again.

[148]	There is then the written acknowledgment by Danielle dated 12 November 1996, which I have already referred to and which I repeat in full:

I Danielle, have taken advice and I accept my father’s denials of any wrong conduct.

I unreservedly withdraw the allegations of abuse and neglect made by me and acknowledge they were unjustified. I undertake not to raise these hurtful allegations ever again.

[149]	For completeness, I mention a handwritten file note dated 28 June 1996 made by Danielle’s lawyer of a telephone conversation he had with Richard’s lawyer. The file note records “Mr Brown … denies that he has done anything that could be properly called sexual abuse”. Mr Jefferson places some reliance on the document and in particular the word “properly” and submits this supports the allegations and is simply a denial of lack of sexual intent. I do not see the file note that way. It is a note made by Danielle’s lawyer and needs to be seen in the context of other documents in which Richard denies any suggestion of sexual abuse “as set forth by Danielle”.

[150]	I also note that Danielle has fallen out with other members of her family. Aside from her father, this is so of her relationship with Sarah and her own daughters, Anna and Belinda. Similarly, with her mother and Nicholas, from an early age. In relation to her mother, she says that sometime well prior to her seventeenth birthday about 1968, due to her overall miserable existence and emotional trauma living with her mother, she left home.

[151]	When Delia died, Danielle brought a Family Protection Act claim against her estate. Her affidavit in that proceeding, sworn 22 March 2013, was before the Court. In that affidavit, Danielle alleged that her mother physically abused her as a young child and later as a teenager when she was in her legal custody.

[152]	Delia made no provision for any of her three children and she left a signed statement dated 18 January 2004 to accompany her will which records:

My son Nicholas is a millionaire in his own right. He has told me more than once that he does not want anything from my estate.

Sarah has not been a good daughter. She is a mischief maker and has been difficult since a young child. Danielle has written me very vindictive letters

over the years, she has threatened me and when I was in hospital she tried to get possession of my assets. There was a period of 5 years when I had not seen her and she has just started seeing me again. …68

[153]	The Court awarded Danielle and Sarah each one-tenth share of the residuary estate.

[154]	Danielle also made a claim against her maternal grandmother’s estate. Her affidavit in support of the claim is before the Court. Somewhat inconsistently with her allegations against her mother, she says in the affidavit sworn 2 December 1996 in support of her claim against her grandmother’s estate, her relationship with her mother was “reasonably good”.

[155]	There is also inconsistency between what she said in the 1996 affidavit about visits to her grandmother when she was in a nursing home as against what she now says in this proceeding. In the 1996 affidavit she says she visited her maternal grandmother in August 1995 and thereafter made weekly visits and her grandmother was pleased to see her on each occasion. She refers to the various discussions that she had with her grandmother during her weekly visits.

[156]	She says her visits were subsequently stopped and she believed her aunt and her father had forbidden the visits as she was allegedly causing trouble. However, in one of her affidavits in this proceeding she says she was only able to make one visit to her grandmother in the nursing home.

[157]	As to Nicholas, he says the reason he was sent to boarding school was because Danielle did not like him. He says she was always abusive and domineering towards him. Their father got him out of the “unpleasant environment” not only for his benefit, but for the benefit of the whole family as Danielle was causing so much trouble. This description is consistent with the report of the school Principal regarding Danielle “picking on” other children. Danielle, however, disagrees and says that Nicholas was sent to boarding school because their mother could not handle his bad behaviour.

68	For completeness I record that both Danielle and Sarah say that their mother, Delia, had mental health issues, especially later in life.

[158]	Catherine says about a year after she and Richard were married in 1979, Richard told her that Danielle had made an allegation that he had abused her. She said Richard told her that Danielle’s allegations were completely untrue. She says Richard was a private person by nature and she well recalls how painful it was for him to tell her about Danielle. She said he made it very clear that he was very upset and shocked at her allegations which he categorically denied.

[159]	Catherine says she understands that Danielle has alleged not only sexual abuse but also that he physically beat and harmed her and regularly acted in a highly cruel manner towards her. She acknowledges that she was not there at the time, but says Richard was just not like that. She says that one of her sons lived with the two of them from age 13 until he was well into his twenties. She says Richard was only ever kind and considerate to him as he was with other children around him. She says that although Richard had high standards of behaviour that he expected from others, he was not a cruel or vindictive person. To the contrary, he was a generous and empathetic man.

[160]	She says that Danielle’s name came up from time to time over the years when they were married and Richard made it clear that he had no time whatsoever for her as he was extremely upset at her behaviour towards him, including when she made the monetary claim against him in 1996 on the basis of alleged sexual abuse and other forms of abuse.

[161]	She says that Danielle made no attempt to contact Richard over the years (Danielle disagrees with this). She says that she never contacted him for birthdays or other occasions such as Christmas.

[162]	Having regard to all of the evidence, my decision is that Danielle has not discharged the onus, on the balance of probabilities, of proving the allegations she makes regarding the various forms of abuse. In reaching that decision I take into account the following drawn from the above summary of evidence:

(a)	While the allegations of sexual abuse were raised by Danielle when she was a child (according to the landlady) they need to be considered in

the context of the report from Danielle’s school Principal at the time (refer to [119] above). The Principal refers to Danielle as living in a world of fantasy and that it is difficult to believe anything she says. The Principal provided an example to illustrate the opinion;

(b)	Similarly, while Delia also reported allegations of sexual abuse when Danielle was younger, this was in the context of bitterly fought custody proceedings;

(c)	Delia made more detailed allegations in 1995 when Danielle sought payment from her father for the alleged abuse. Delia then wrote what  I have referred to as a withdrawal letter saying that she wrote a letter “which my daughter wrote me” and made her sign it with the offer of money to help her in the courtroom;

(d)	The report of Dr Ratcliffe relies on what Danielle told her and the mother’s statement (prior to the withdrawal letter);

(e)	When the allegations were raised through lawyers, Richard strenuously denied them. He was prepared to face prosecution rather than make any payment in case that it was seen as indicating an acceptance of the allegations;

(f)	When Danielle “settled” her claim she did so on legal advice and acknowledged that her allegations were unjustified and she unreservedly withdrew them;

(g)	If there had been physical abuse, of the kind Danielle asserts, and emotional abuse occurring in the on-going way and over an extended period as alleged by Danielle, I consider Nicholas would have been aware of that conduct. He says he was not aware of it; and

(h)	The person Danielle describes is entirely different from the person described by Nicholas and Catherine.

[163]	I accept that Richard did use physical discipline on Danielle. However it was not as described by Danielle. Rather it was in the nature of smacking (in those times accepted as appropriate “correctional” behaviour by a parent).

[164]	As a parent Richard owed Danielle a moral duty of maintenance and support as his daughter. I find that that duty was not increased by virtue of the allegations of abuse made by Danielle, having found those allegations not proven.

[165]	The issue is whether, in making the provision he did, Richard breached his duty such that further maintenance and support is required. The estrangement between Danielle and her father requires consideration at this point. There is agreement that Danielle and her father were estranged from each other. The issue is over what caused the estrangement. Nicholas suggests it was initiated by Danielle and was reinforced by her letter to her father written from Sydney.

[166]	Danielle says she feels she was never wanted as a child and her father blamed her for her parents having to get married. She says he excluded her because of his conduct towards her as a child (I have found those allegations not proven). I therefore put that assertion by Danielle to one side. Danielle also says that her father held it against her because she chose to live with her mother after the parents separated. This estrangement came from Richard not from her.

[167]	Whatever the cause of the estrangement in those earlier years (putting aside the allegations of abuse) this first occurred when Danielle was young. I do not consider that she can be held responsible for the estrangement in her younger years. As to the letter she wrote from Sydney, Danielle was aged only 17. While the contents of the letter may have been hurtful to her father, nevertheless he was the adult and she was an adolescent.

[168]	However, by 1996, Danielle was an adult and she needs to take responsibility for the consequences of her allegations and the impact they had on her father. But notwithstanding the hurt that was said to have been caused to Richard by the allegations, he recognised in 1996 that Danielle had not had the benefit of a family life

and moral support from him. The issue is whether the will and more particularly the codicil were sufficient to make good the consequences of the estrangement.

[169]	There were earlier wills of 1999 and 2000, copies of which record that they were prepared by Guardian Trust. Under the 1999 will, Danielle was to receive a 24/32 share of a property in Auckland. There is no evidence as to the value of the property at that time. The 2004 will provided for a legacy of $120,000 to Danielle. The 2011 will retained the legacy of $120,000 to Danielle. The provision for Danielle in the 2018 codicil is a significant increase on the sum of $120,000.

[170]	The affidavit of solicitor Ann Davidson who was involved in advising Richard regarding the preparation of the codicil, demonstrates the real care with which Richard paid to the terms of the codicil. Ms Davidson’s evidence is that she met with Richard for the purpose of preparing the codicil on four occasions: on 16 May, 7 and 14 June and 9 July 2018. She says that on each of those four occasions on which she met Richard, he was present with Catherine. Ms Davidson says the purpose of the meeting was to review the provisions of Richard’s then last will and to prepare and have him sign the amendments that he wanted to be made as reflected in the codicil. She refers to file notes made of the last two meetings. She says she spent four hours with him in those two meetings alone.

[171]	Ms Davidson refers to her file note of her third meeting with Richard and Catherine on 14 June 2018. There is reference in that file note to making further provision for Richard’s daughter, Danielle, “from whom he is estranged – and has been for some time – to recognise her as part of his family”. Ms Davidson says that is her wording regarding what she had recommended Richard to do. She says she discussed with him the risk of a Family Protection Act claim.

[172]	The care Richard took was also apparent from Catherine’s affidavit. She says her husband thought very carefully about the provisions of his will and codicil. Catherine said Richard reflected on the discussions regarding a Family Protection Act claim, along with other discussions they had with Ms Davidson. The two of them discussed the issues between their meetings with Ms Davidson.

[173]	At the time the codicil was prepared, Richard had anticipated that the residue of the estate would be in the order of $2 million. A two-eighths share for Danielle would have meant she would have received about $500,000. Ms Davidson says that Richard was of the opinion that $500,000 would be sufficient provision for Danielle in all of the circumstances. However, as is apparent, the one-quarter share of the residue is at least $612,500 or, using Danielle’s figures, $668,000. Even the more conservative figure is a substantial amount.

[174]	In relative terms, Danielle herself is in a moderate financial position. Given the more recent trend towards conservatism and the respect towards a testator’s autonomy (coupled with the Carson approach focusing on a monetary amount rather than a percentage of approach), the Court rarely interferes where the will has provided for a substantial monetary amount to the claimant as is the case here.

[175]	Mr Waalkens assists this Court with the case of Brosnahan v Meo.69 However, the circumstances of that case were very different from this case. The deceased testatrix had left a testamentary provision of 30 per cent ($620,880) of her estate to the claimant, her only child. He had been particularly dutiful and loyal towards his mother and amongst other things had contributed significantly to building up the total value of his mother’s estate.70 There was also a testamentary promise, which the Court placed reliance upon.71 In those particular circumstances, the Court increased the son’s provision from 30 per cent to 50 per cent of the estate ($950,000).

[176]	In this case as the adult, Richard, must take responsibility for the estrangement in earlier years, but then Danielle, as an adult, contributed significantly to the estrangement by making serious allegations against her father (which I have found have not been proven).

[177]	Against that background, there was no breach of moral duty in the provision of $612,500 (or $668,000 which is Danielle’s figure) under the codicil.

69	Brosnahan v Meo [2021] NZHC 79.
70	Brosnahan v Meo, above n 69, at [91].
71	At [73] and [75].

[178]	For all the above reasons, there is no breach of moral duty and the claim by Danielle is dismissed.

Sarah

[179]	As the case law makes clear, there must be a focus on the actual relationship between Richard and Sarah. Sarah asserts that there were significant social interactions between the two of them. The weight of evidence suggests that is not the case, at least for an extended period prior to Richard’s death.

[180]	Sarah annexes eight photographs to her affidavit in support of her claim as to her relationship with her father. However, with the exception of one photograph, they are historical: the first is taken at the wedding of Richard and Catherine in December 1979 and the others in 1985 and 1986. The exception is a photograph of Sarah and Richard at a café which Sarah says was taken on 17 May 2018. Nicholas explains the circumstances of the photograph, which he says he took. He had arranged this meeting for their father to meet with Sarah as she had said she had not seen their father for a while. Nicholas says their father told him that he did not want to meet with her, but Nicholas persuaded him to do so and said he would take him.

[181]	Catherine’s evidence is that Sarah had very little to do with her and with Richard (but she was aware that Richard was supporting her financially. I will come to that). She says Sarah did not visit them. She says Sarah did stay with them on one occasion many years earlier but Sarah was “incredibly abusive” towards Catherine. Sarah’s lack of visits to their father’s home is confirmed by Nicholas.

[182]	However, Sarah suggests that Catherine may not have been aware of occasions when her father visited her. For example, she says on occasions when Catherine telephoned her father when he was with Sarah, her father would not tell Catherine that he was spending time with her and Brodie. But I note that Sarah left for Australia as long ago as 2005 with Brodie following in 2010.

[183]	More significantly, Sarah’s assertion that she was close to her father and had a good relationship with him is contradicted by how she describes her father and their relationship in correspondence. Danielle refers to this in her evidence. She says that

Sarah frequently had conversations with her about how much she hated Richard even though he had extensively supported her financially over the years. Danielle also says that regardless of Sarah’s good fortune, she continually ran down their father to her, informing Danielle of her hatred towards him. Danielle’s evidence on this issue is supported by email communications between Danielle and Sarah. For example, in 2010 Sarah said to Danielle in an email: “Father, what the f … is that Sis. A c… that betrays me”. In that same email communication, where the two sisters are discussing Richard (or more accurately the E Trust) buying another house for Sarah, Sarah says:

… I wanted to look at this really nice house, right. As U know have to get everything done through Sir Richard, OK. … Well he starts with the bullshit so i said, “Dad U have never been here to visit in 6 years. Why is that?”

His response was “never want to visit U and never will”.

[184]	Danielle responded, “You knew that already” to which Sarah replied, “Well he said it”.

[185]	Again, as part of that communication, Sarah said:

Yes i run him down ‘cos i feel like an aborted misfit same as you OK. He has never been a father and if the only thing I get is a house so be it.

[186]	Danielle responded:

Well if he didn’t care about you he wouldn’t entertain the idea would he, he would just say “Don’t look a gift horse in the mouth” and tell you to stay where you are.

[187]	That brings me to the provision that Richard made throughout his life for Sarah.

[188]	Sarah’s son, Brodie, was Richard’s first grandson. As already noted, Richard provided for Sarah and Brodie in a significant way throughout his life. First, he established the E Trust in 1999 as a vehicle for providing Sarah and Brodie with housing. The Trust purchased properties in Auckland (starting from the time when Sarah married her first husband) then in Brisbane when Sarah relocated there until she returned to New Zealand in May 2016. The Trust then purchased a property in Auckland where Sarah has continued to live since November 2016.

[189]	Additionally, Richard provided employment for Sarah’s first husband in one of his business ventures (but the marriage lasted only a couple of years). Then Richard paid school fees for Brodie until he went to secondary school.

[190]	In addition to providing homes for Sarah, Richard made regular weekly cash payments to Sarah over the years. The way that Nicholas put it was that from 1985 all Sarah’s bills, spending money and accommodation were paid for by their father.

[191]	Sarah’s evidence is that, by reference to the time period when the E Trust purchased a property for her to live in Brisbane, “at that time the E Trust also paid me
$250 per week commencing at the end of November 2011 until May 2016”. After her return to New Zealand, the E Trust purchased the property where she continues to live, in November 2016. She says she received $350 per week (but does not mention the commencement date for those payments). Sarah similarly does not mention any detail of payments received prior to November 2011.

[192]	Nicholas’ evidence is that for 16 years from 1984, Sarah received $250 per week from their father and from 2000 until 2018, $350 per week. He says that, in total, she has received well over $500,000. Sarah did not file any evidence in reply to Nicholas’ evidence regarding the period from 1984 to 2000. Mr Bogiatto accepted that. I therefore adopt the figure of $208,000 for that period.

[193]	Sarah similarly did not respond in relation to the period from 2000 to 2011. At
$350 per week, the sum is $200,200.

[194]	Sarah’s figure for the periods from December 2011 to May 2016 and from June 2016 to June 2019, is $113,100. Adopting those figures and adding them to Nicholas’ figures for the earlier periods, in total, from 1984 the amount is, as Nicholas says, over
$500,000.

[195]	It is clear that Richard thought Sarah had been well provided for by him and through the Trust. He expressed that to Catherine. Also in an affidavit he swore in response to Danielle and Sarah’s Family Protection Act claims against their paternal grandmother’s estate, Richard stated that Sarah “has to a considerable degree been

supported by me financially and emotionally through the domestic difficulties which she has had and that my mother was aware of that …”..

[196]	Mr Bogiatto acknowledges that Richard looked after Sarah during his lifetime. He says Richard did not neglect her. But he says when it came to the will, the same generosity was not expressed. That was the breach of moral duty, he submits.

[197]	It is apparent from Ms Davidson’s evidence that Richard took the same care in considering his provision for Sarah as he did with Danielle. Ms Davidson says that Richard told her that Sarah did not manage money well.

[198]	This is consistent with Danielle’s evidence, who describes Sarah as having an addictive personality, including an addiction to alcohol and gambling and that Richard paid for her to spend time at Hanmer Springs to address those issues. Nicholas also refers to Sarah having a history of alcohol abuse from her late teens. Sarah acknowledges that for some years she was an alcoholic. That provides a context for the discussions Ms Davidson says she and Richard had so that some of the residuary estate provision for Sarah would be given to her personally, with the remainder through the E Trust.

[199]	The E Trust receives the sum of $100,000 and a one-eighth share of the residue. Sarah says that although she is a discretionary beneficiary, the final beneficiary is her son Brodie. She also notes that the Trust Deed is worded so that the trustees have the discretion to exclude any discretionary beneficiary. She also says she has no say regarding the administration of the affairs of the Trust. However, as to her evidence that she has not been appointed a trustee, there is no evidence to suggest she has taken this up with Nicholas. Nicholas accepts that under the terms of the Trust Deed, Sarah becomes a trustee on Richard’s death.

[200]	There is also no indication that the trustees would disentitle her under the particular clause in the Trust Deed. There is no evidence that would entitle them to act in that way. In other words, there is no practical substance to what she says is a concern for her. There is similarly no practical force in the submission that this is a

discretionary trust and so should be ignored. Trustees are obliged at law to behave responsibly.

[201]	There is the fact that as Sarah is not the only beneficiary of the E Trust she may not receive the full two-eighths share which Danielle and Nicholas each receive. However, balanced against that are the significant weekly payments Sarah received over many years and the accommodation provided for her again over many years and which continues to be provided.

[202]	For present purposes, I put to one side the $100,000 (now $79,500) as part of that sum may need to be considered in the context of Brodie’s claim. But when one puts together the provision of one-eighth of the residue (at least $306,250) together with the benefits she may receive as a beneficiary under the E Trust (another one- eighth of the residue), the rent-free accommodation throughout most of her adult life along with the financial benefits Sarah received prior to her father’s death, I consider she has been and will continue to be, well and appropriately provided for by her father.

[203]	For all the above reasons, Sarah has not established a breach of moral duty. Her claim is dismissed.

Belinda

[204]	On the one hand, Mr Locke for Belinda acknowledges the clearly established legal principles to the effect that a grandchild will have difficulty in pursuing a claim where his or her parent is still alive. But on the other hand, he suggests an award to Belinda of $625,000 is appropriate. Mr Waalkens submits that Belinda has, both at law and in fact, adopted an entirely unrealistic and unsupportable approach.

[205]	Belinda has been estranged from her grandfather for a considerable period of her life. She says that the estrangement from her grandfather arose from her belief that morally she felt it was correct to support her mother (in relation to the 1996 claim made by Danielle against Richard). Belinda continues saying that “Granddad from that point became distant toward me”. She says she did attempt to make contact with her grandfather on many occasions and was always told he did not have time to meet her, or his wife, Catherine, did not approve.

[206]	There is no supporting evidence of the alleged attempts. Catherine’s evidence is that other than one occasion when Belinda came to visit the two of them some 30 years ago or so, they had no contact from Belinda whatsoever. This included every birthday that Richard had and Christmas and other occasions. Nicholas says his father never spoke of any relationship with, nor of any interaction with Belinda.

[207]	Belinda says that being estranged from her grandfather meant that she was also estranged from her Uncle Nicholas, his wife and children. She does not assert, however, that she attempted to keep in contact with Nicholas. He says he has never met her.

[208]	Certainly, Richard regarded the estrangement as relevant when considering the codicil to his will. Ms Davidson refers to a file note of 9 July 2018 when Richard executed the codicil to “make provision for Nicholas’ four children plus Danielle’s daughter Anna – all of whom Richard has a good relationship with and are important in his life”. Richard advised her there were grandchildren he had not made provision for (or not the same provision as for Nicholas’ children and Anna) as Richard had very little (if any) contact with those grandchildren.

[209]	That file note is consistent with handwritten notes Ms Davidson made of her meetings with Richard on 7 or 14 June 2018 where she referred to Danielle’s three children and noted Richard only sees Anna but does not see the others. The file note also states, “Belinda used to see Richard but married and moved to Australia. Anna
→ calls Richard. Other two not in touch with Richard”.

[210]	Another handwritten notes records:

Danielle → 3 girls.

Anna → Richard sees her. Good girl. Couple of children (20 and 13).

Belinda  →  left  whole family.	Disappear. Surfers Paradise?	(illegible). Doesn’t keep in touch.

[211]	The reference to Anna in the file note is consistent with Nicholas’ evidence. He says his father had a good relationship with Anna who would call him often and visit him whenever she was in Auckland. He says Belinda was not known to his father.

[212]	In those circumstances, it is not surprising that Belinda was not provided for.

[213]	I consider the primary obligation to provide for Belinda rests with her mother, Danielle. This case bears no similarity to the body of cases where a grandchild should be afforded the same status as a child. Nor does it fall within those cases where, because of a special relationship between a grandparent and a grandchild, provision or further provision out of an estate is warranted (for example see DH at [95] above).

[214]	If because of the estrangement between Danielle and Belinda, Danielle does not make provision for Belinda in her will, then it would be open to Belinda to pursue a Family Protection claim against her mother.

[215]	I do not consider Belinda has established a breach of moral duty on the part of Richard by having regard, as she does in the submissions on her behalf, to the fact that other grandchildren (Nicholas’ four children and Belinda’s sister Anna) were provided for under the will. Where one grandchild has a close relationship with their grandparent, they are understandably treated preferentially to a grandchild who has had minimal or no contact with the grandparent. Belinda’s reliance upon how Richard treated five of his other grandchildren is irrelevant.

[216]	For the above reasons, I consider there was no breach of moral duty. Belinda’s claim is refused.

Brodie

[217]	There is no doubt that Richard assisted Brodie in the early years of his life. Nicholas refers to Sarah’s history of alcohol abuse from her late teens and says their father stepped in and assumed responsibility not only for Sarah but also for Brodie. The uncontested evidence is that Richard enrolled him in a private school in Auckland and paid his school fees until Brodie went to secondary school. As well as providing financial help, Sarah says that Richard was an important male influence and supportive for Brodie.

[218]	She says that by 2009, Brodie was suffering from alcoholism. She says he was supported to attend rehabilitation programmes at Hanmer Springs and Hamilton. As I understand her affidavit, it was Richard who provided that support.

[219]	Nicholas’ evidence is that Brodie has been completely disconnected from his grandfather for many years. He says, to his knowledge, Brodie did not visit Richard or Richard’s home for the last 15 years of his life.

[220]	It is clear that Richard also gave careful thought to a bequest for Brodie. The
$15,000 bequest and the balance of the funds due from the existing legacy to the      E Trust (being $79,500 of the $100,000) provide an avenue of immediate support for Brodie to return to New Zealand. Mr Waalkens made it clear that the $15,000 will be paid out as soon as the Court issues its decision. That will enable him (or his mother on his behalf) to purchase an air ticket to New Zealand with funds left over for his initial period in New Zealand. Any payment from the $79,500 will be a matter for the trustees of the E Trust. The position on behalf of Nicholas (one of the trustees) was that sum could also be used to assist Brodie if there was a pressing need. And the evidence establishes that there is a pressing need. There seems to be no need for $350 per week to be paid for private rehabilitation in Australia. Although Mr Fulton submits that is required, Sarah accepts that Alcoholics Anonymous in New Zealand would provide for satisfactory rehabilitation.

[221]	But I do not go further, as regards the one-eighth share of the residue to the Trust. Mr Fulton’s submission was that the Court should order that be provided to Brodie with a new and independent trustee to manage the distribution to Brodie. That is out of line with the legal principles relevant to grandchildren. It also would remove part of the provision for his mother, Sarah as a beneficiary of the E Trust.

[222]	The alienation from his grandfather for so long with no attempted contact whatsoever by Brodie justifies the adequacy of the existing provision that has been made for Brodie. The $15,000 bequest is also not out of line with the bequest in the codicil to Nicholas’ former wife of $20,000 and also his bequests of $20,000 each to his two stepsons who were part of his life since he married Catherine in 1979. The

evidence is that Richard was close to both his stepsons. Brodie is also a beneficiary of the E Trust. As well he is the final beneficiary.

[223]	In making the provision for Brodie, there was no breach of Richard’s duty to Brodie. His claim is dismissed.

Costs

[224]	Costs are reserved. If the parties can agree costs, a joint memorandum should be filed and served within 20 working days of the date of this judgment. If costs cannot be agreed, then Nicholas and the executors are to file and serve their memoranda within five working days of the date for the joint memorandum.

[225]	Danielle, Sarah, Belinda and Brodie are to file and serve their memoranda within 10 working days of the date of receipt of the memoranda from Nicholas and the executors.

Gordon J

Grandchildren

Anna Granddaughter (Adopted out) 1/5th of 2/8s of residue

Belinda Granddaughter No provision

Rachel Granddaughter No provision
(settled her claim with the estate for $20,000)

Step son of deceased Gift
$20,000

Granddaughter
1/5th of 2/8s of residue

Granddaughter
1/5th of 2/8s of residue

Grandson
1/5th of 2/8s of residue

Brodie
Grandson
Gift of $15,000

Grandson
1/5th of 2/8s of residue

FAMILY TREE AND PROVISION UNDER THE WILL AND CODICIL

RICHARD BROWN
Deceased

Catherine
(2nd Wife of Deceased) Joint account ($1.82m), Life Interest in home
, and $25,000 every 6 months to $500k

Step son of deceased Gift
$20,000

Children

Danielle Eldest daughter 2/8ths of residue

Nicholas
Son
Gift of 5x properties (est value $4.75m) and 2/8ths of residue

Sarah Youngest daughter
1/8th of residue

Trusts Established
by the Deceased

R Trust
Est 2004
Debt forgiven

E Trust
Est 1999
$100,000 plus 1/8th of residue

Other

Former wife of Nicholas
Gift $20,000