(2000)_19_frnz_260

260 Court ofAppeal

WILLIAMS V AUCUTT

19 FRNZ 260

Court ofAppeal (CA179/99)Richardson P, Gault, Keith, Blanchard, Tipping JJ

4 April; 20 April 2000

Family protection - Inadequate provision - Estate worth $1 m - Claim byindependently wealthy elder daughter - Provision ofabout 5 percent ofestate toelder daughter and 95 percent to younger daughter excluding legacies - Elderdaughter claimed greater provision to recognise her place in family andcontribution to mother's wellbeing - Meaning of "proper maintenance andsupport" - Community attitudes to provision for adult children - Testatrix hadtaken care in disposing of items but probably unaware of estate's true value Provision from residue inappropriate - Further provision of $50,000 - FamilyProtection Act 1955, s 4.

Mrs H died on 3 January 1996, leaving an estate of nearly $1 m. She left the bulkof her estate, including her house property and contents, bank accounts, a valuablepainting, and a parcel of shares, to her younger daughter, Christine. She left aparcel of shares, a painting, and specified chattels to her elder daughter, Susan,with specified personal items and a $1,000 legacy for each grandchild. Excludingthe gifts to the grandchildren, Christine received about 95 percent of the estate andSusan received about 5 percent. Susan and her husband owned assets worth closeto $1 m, while Christine, who lived in Melbourne with her husband, estimated hernet worth at $78,000. In her will, Mrs H declared that she had made greaterprovision for Christine not because of any lack of love for Susan, but because sheconsidered that Susan was "well provided for from other sources" and that "it wasthe wish and intention of my late husband that Christine's greater need berecognised". She had included a similar provision in a previous will, in which shealso noted that she did not expect the estate would reach the $450,000 level thenneeded to attract estate duty.

Susan's claim against her mother's estate was not based on any need formaintenance and support. She argued that she deserved greater provision torecognise her position in the family and the contributions she made to her mother'swellbeing.

The High Court held that the key question was whether the difference Mrs Hhad made between her daughters was an appropriate one for a wise and justtestator to make. The Judge held that Mrs H had breached her moral duty to Susanby failing to recognise Susan's position in, and contributions to, her life. Heawarded Susan a 25 percent share of the residue of the estate.

The High Court Judge's decision was appealed on five grounds:(1) The Judge's inherent proposition that any differences in disposition must be

justified was wrong.

Williamsv Aucutt 261

(2) The Judge had failed to consider whether Susan had established any needfor proper maintenance and support.

(3) The Judge's decision that a reduced share would amply meet Christine'sneeds had overlooked the need for Susan to demonstrate a breach of duty.

(4) The Judge had erred in holding that this was a large estate.(5) The statutory focus was on maintenance and support, not contributions.

[Note: Consistent with the format of the issued judgment, paragraph numbersrather than line numbers are used in this report.]

Held, allowing the appeal:

(1) (per curiam) While it may be worthwhile to check external yardsticks suchas the consumer price index to check the size of an estate, the assessment is notsimply of the absolute size of the estate but is also relative having regard to thevarious claims on it. (p 270, para 41)Re Allen; Allen v Manchester [1922] NZLR 218 followed

(2) The High Court Judge, in stating the question as being whether thedifference drawn between the two sisters was appropriate for a just and wisetestator to make, failed to establish whether the provision for Susan in the will wasnot adequate to provide for her proper maintenance and support in the context ofher own means and obligations. (p 272, paras 48-50)Re Shirley 6/7/87, CA155/85 followed

(3) The appropriate test is whether adequate provision has been made for theproper maintenance and support of the claimant. Need does not have to beexpressly found. The word "proper" as used in s 4 connotes something differentfrom "adequate" and "support" is an additional and wider term. In using thecomposite expression, the legislation recognises that a broader approach isrequired and that the authorities referred to establish that moral and ethicalconsideration are to be taken into account in determining the scope of the duty."Support" is used its wider dictionary meaning of "sustaining, providing comfort",not simply by financial provision for economic needs but also by recognition ofbelonging to a family and having been an important part of the overall life of thedeceased. Just what constitutes proper support in this case is a matter of judgmentin the individual circumstances. (p 269, para 38; p 273, para 52)Bosch v Perpetual Trustee Co Ltd [1938] AC 463Re Harrison [1962] NZLR 6 considered

(4) In the present case the appropriate question is whether the testatrix madeadequate provision to discharge her duty to provide Susan with adequate provisionfor her proper support. The testatrix had taken considerable care in determininghow various family possessions should be distributed. However, the High CourtJudge was entitled to conclude that the testatrix was probably unaware of the fullextent of her estate or the effect of the removal of estate duties. Her note attachedto her previous will suggested that she must have assessed the shares and bankdeposits as being worth considerably less than their value at her death. (p 273,paras 53-54; p 278, para 73-74)

(5) It was usually not appropriate to award a share in the residue as such and soredraw a will. Any legacy designed to serve the limited purpose of supplementingthe recognition of Susan's family belonging already provided under the will would

262 Court ofAppeal 19 FRNZ260

have to be a relatively modest amount. The additional sum of some $200,000awarded by the High Court Judge was excessive and would be substituted by anadditional provision of $50,000. (p 274, para 55)

Obiter, (1) (per Blanchard J) The Court is not authorised to rewrite a will merelybecause it may be perceived as being unfair to a family member, and it is not for abeneficiary to have to justify the share that has been given, but for a claimant toestablish that he or she has not received adequate provision for proper maintenanceand support. (p 277, para 68)

(2) (per curiam) While it is not evident that the limited response to the NewZealand Law Commission's report reflects New Zealand's social attitudes, and theconclusion of the report could be considered an extreme view, there had beenpointers in the Report of the Working Group on Matrimonial Property and FamilyProtection, previous case law, and a survey of family protection claims whichindicate concerns that some recent Court orders have been out of line with currentsocial attitudes to testamentary freedom relative to claims by adult children.(p 271, para 45; p 277, para 68)

Cases referred toAllardice, Re (1910) 29 NZLR 959Allen (dec'd), Re, Allen v Manchester [1922] NZLR 218Bosch v Perpetual Trustee Co Ltd [1938] AC 463 (PC)Foote, Re 21/7/88, CA163/87Harrison (dec'd), Re, Thomson v Harrison [1962] NZLR 6 (CA)Leonard, Re [1985] 2 NZLR 88Little v Angus [1981] 1 NZLR 126Shirley, Re 6/7/87, CA155/85Wilson, Re [1973] 2 NZLR 359Wilson, Re 5/11/90, Tipping J, HC Christchurch M19/90

AppealThis was an appeal against a High Court decision awarding a Family ProtectionAct claimant an additional 25 percent of the residue ofher mother's estate.

A D MacKenzie and W M Patterson for appellantG M Downing for first respondentNo appearance for second respondents

The judgment of Richardson P, Gault, Keith, and Tipping JJ was delivered by

RICHARDSON P: [1] This appeal is against a judgment of Heron J delivered inthe High Court at Nelson on 18 June 1999 ordering further provision out of theestate of Lilian Beatrice Henderson in favour of her daughter Mrs Susan MaryAucutt under s 4 of the Family Protection Act 1955. The appellant, Mrs ChristineCraig Williams, is the only other child of the deceased and the primary beneficiaryunder the will. It is convenient to refer to the two sisters as Susan and Christine.

[2] Section 4 provides:

"4. Claims against estate of deceased person for maintenance--(l) Notwithstandinganything to the contrary in the Administration Act 1969, if any person (in this Act referredto as the deceased) dies, whether testate or intestate, and in terms of his will or as a result of

Williams v Aucutt 263

his intestacyadequate provision is not available from his estatefor the propermaintenanceand support thereafter of the persons by whomor on whose behalfapplication may be madeunder this Act as aforesaid, the Court may, at its discretion on application so made, orderthat such provision as theCourt thinksfit shallbe made out of the estate of the deceased forall or any ofthose persons."

[3] The special feature of the case is that Susan did not claim any present orpossible future economic need for maintenance and support. Rather, her claim wasand is that she deserved greater provision than was made for her under the will torecognise that she belongs in the family and to recognise her position in the overalllife of her mother and the contribution she made in that respect.

Background[4] Mrs Henderson died on 3 January 1996, aged 88 years. Her husband, whom

she had married on 11 March 1936, had died on 23 June 1975, leaving her hisestate. On their marriage they lived in Batavia but he was taken prisoner by theJapanese and the family was not reunited until after the war. He worked for aninternational telecommunications company in Hong Kong, Manila, Malta and, formany years, in Singapore. He and his wife retired to New Zealand in 1967 after3 years in Malta and built their home at Upper Moutere, near Nelson, known as"Duncraig".

[5] Susan was born on 24 August 1937 and married on 4 July 1959 inSingapore, where she and her husband and family lived until they moved to Nelsonin 1979. Her husband, a successful businessman, retired around 1995. They havethree sons who were 36, 34 and 25 in 1996.

[6] Christine was born on 7 November 1946 and married her husband, a UScitizen, on 20 March 1972. They have lived in Australia since then and have twosons, born on 15 February 1987 and 19 November 1989.

[7] It is well settled that whether there has been a breach of duty to makeadequate provision under s 4 is customarily decided as at the date of death and indeciding how any established breach should be remedied regard is had to laterevents and thus including changes in asset values and financial and personalcircumstances up to the date of hearing.

[8] The first inquiry, whether there has been a breach of duty, obviouslyrequires details of the estate and of the financial positions of the claimants andbeneficiaries under the will, all as at the date of death. Regrettably, the detailsprovided by the executors are not adequately focused on that date, which is amatter of some importance. In their affidavit of 6 December 1996, 11 months afterthe date of death, the executors, a Nelson solicitor and a Nelson barrister, referredto assets know to them at that time under four heads: the house property with aGovernment valuation as at 1 September 1993 of $320,000; household contentswith a valuation on 14 February 1996 of $231,000 on call and fixed deposits of$115,846; and shares as at 30 November 1996 - 15,622 BHP shares A$281,508,1,744 CSR A$6,993, and two small shareholdings in overseas companies totallingsome $2,000. There is no evidence as to the actual value of the house property asat the date of death, the Government valuation as at 1 September 1996 was$372,000 and as at 1 September 1999 $405,000. Valuations by different registeredvaluers were $400,000 to $450,000 as at 6 July 1998 and $480,000 as at April1999. A valuation by Dunbar Sloane Ltd of the contents dated 13 September 1997

264 Court ofAppeal (Richardson P) 19 FRNZ 260

gives market values totalling $116,290 and insurance values $226,945. The estateincome for the 11 months up to 6 December 1996 is not identified, but ispresumably included in the deposits and in any shares representing reinvestment ofdividends.

[9] On a necessarily broad approach, given those data limitations, the totalestate as at the date of death amounted to around $920,000. That represents some$380,000 for the house (reflecting the increase in the Government valuationsbetween September 1993 and September 1996 and with some allowance torecognise the higher than Government Valuation's valuations in 1998 and 1999);$120,000 for the market value of the contents; and $420,000 for the deposits andshares (allowing as a deduction 5 percent in respect of the deposits and shares toreflect income, and simply converting the 30 November 1996 share values to NewZealand dollars at $NZ1 = A$.90).

[10] Referring to Christine's position as at the date of hearing, Heron J observedthat on any measure her assets were modest, and there is nothing to suggest achange of any significance in the 312 years since the date of death, or for thatmatter up to the present. She owns a section of land valued at approximately$100,000 purchased in 1987 with a gift of $60,000 from her mother, but subject toa mortgage, and she has an old motor vehicle and a conventional amount offurniture and fittings. She put her net worth at $78,000. They have rented a smallflat in Melbourne for over 20 years. She has an honours degree from theUniversity of London and occasionally works part time. Her husband is a selfemployed designer of furniture and children's books and has an after tax income of$A32,000. The children are home-schooled and aspirations for their secondary andtertiary education would involve substantial fees and expenditures.

[11] Heron J accepted that the assets of Mr and Mrs Aucutt, as disclosed byMrs Aucutt, were worth close to $1 m. There was substantial argument in the HighCourt and some discussion in this Court as to whether there had been fulldisclosure. The Judge considered there might be some basis for that criticism butdid not think any increase in the value of her position was likely to be decisive.There is no suggestion of huge wealth and given the basis on which Susan's claimproceeded, and in particular her acceptance that she was not advancing economicneed, present, in the foreseeable future or to cover contingencies, and that herclaim for family recognition could be made without impinging on Christine'swider claims, it is unnecessary to discuss Susan's fmancial position any further.

[12] It was common ground in the High Court that the estate was then worthapproximately $1 m.

The will

[13] By her last will dated 17 February 1992 the deceased devised her residenceto Christine and made a considerable number of bequests and legacies. To Susanshe bequeathed her CSR shares, a painting by John Gully and a number of specificarticles, including a 17-piece Worcester 1807 period teaset. Each of the fivegrandsons received a specified chattel or chattels of family significance and alegacy of $1,000 subject to abatement if the residue was not sufficient. Christinereceived a Hoyte painting, a large list of specified chattels and the contents of theresidence other than those specifically disposed of, plus all shares owned at thedeath other than the CSR shares.


[14] The will contained the conventional direction to the trustees to pay dutiesand testamentary expenses, including estate duties payable in connection with herestate - although the abolition of estate duties had been signalled by the NationalGovernment, that legislation was not passed until 17 December 1992; and theresidue went to Christine.

[15] Paragraph 9 of the will provided:

"I DECLARE that this my Will makes greaterprovision for my daughter Christinethanfor my daughter Susan not because of any lack of affection for my daughter Susan butbecause I consider that my daughter Christine's financial position is much worse than thatof my daughter Susan who is well provided for from othersources and it was the wish andintention of my late husband that Christine's greaterneedbe recognised."

[16] There was a similar provision in her previous will of 25 October 1988.That will also contained specific bequests to Susan of the CSR shares and of alesser list of specified items, not including the Worcester teaset, and including theHoyte rather than the Gully painting. And the then-born grandsons receivedspecified articles and legacies subject to abatement. The testatrix's handwritteninstruction notes for the 1988 will that there should not be any estate duty, theestate being less than the $450,000 beyond which duty attached.

Family relations

[17] The affidavits filed in support and in opposition to Susan's claim rake overthe family history and relationships and the respective involvements of Susan andChristine with their mother, with Susan and Christine criticising each other'sperformance in various respects.

[18] Referring to the earlier years, the Judge summed up the position in thisway:

"Whilst the sistersbetween them disagreeon somedetails, the overallpicture is much thesame. Both girls it seems to me were provided with educational opportunities by theirparents. Whether they were taken up by them to the fullest extent is not important. It seemsto me that in that part of their life their father and mother were dealing with them on anequitablebasis and I can seenothing in the evidence to suggest anythingdifferent."

[19] Then, referring to the later years after 1979, when the Aucutts moved fromSingapore to Nelson and Christine was keeping in touch with her mother andvisiting from time to time from Australia, the Judge accepted that the closenessbetween Susan and her mother was not as great at the end of the deceased's life asin the earlier Nelson years, in particular, with the mother's decline in health anddetermination to live on in her own home. On his assessment of the evidenceHeron J concluded that both of the sisters were dutiful daughters laying emphasison different matters, Christine concerned about keeping her mother within herhome which was obviously her wish and Susan considering the practicalities of itand also the management of her fmancial affairs. And:

"In the end, based on the medical evidence that I haveseen, plainly she [the mother]wasunableto manageher financial affairs and some formal stepshad to be taken. For my part itseemsthat both daughters are to be congratulated on the extent of the attention they gave tothis matter,althoughundoubtedly Christinegave moredirect assistance in the last few yearsbut that cannot overlook the degree of support and comfort and reassurance that Susan


presented by virtueof her being in Nelsoncloseby at times when Christinewas in Australia. .. whilst there was undoubted disagreement as to the manner and method as to thetreatment of theirmother, both daughters had actedwith the best motivation ... This case isconcerned with the respectivepositions of the two daughters in relation to their mother aswill maker which it seems to me have not been seriously challenged by any form ofdisentitling conduct. To the contrary it seems both daughters have rendered services indifferentbut creditable ways."

[20] There was no substantial challenge to those findings and having had anopportunity to read all the material in the case on appeal we do not depart from orwish to add to the Judge's conclusions in that respect.

[21] Finally, the Judge referred to submissions as to the testator's awareness ofthe net worth ofher estate:

"Certainlyfrom 1994onwards there was clear evidenceof a lack of full mental capacity,but even at the time of her 1992 will, a gift of $1,000 to each grandchild was only madesubject to there being sufficient in the estate and to otherwise abate. Furthermore it seemsthat the deceased thought her house property was her most valuable asset and spoke ofAustralian shares of no great value but subsequently discovered to be worth close to aquarterof a million dollars. The chattelswhich had been insured for $20,000 at the time ofher death were subsequently reinsured for $231,000 once the executors became aware oftheir true value."

[22] That last reference to true value should not be taken as a finding that thechattels had a market value of $231,000. The judgment later approved of aproposal to value the chattels in accordance with the Dunbar Sloane valuation. Andthe abatement provision in the will had been carried through from the 1988 will,and perhaps prior wills which the solicitor had prepared. It was the solicitor whosaid that when making the 1992 will he believed the house property was her mostvaluable asset. While she spoke to him then as if the Australian shares were of nogreat value, she specifically bequeathed the CSR shares to Susan as she had in1988 when her handwritten instruction added with reference to what was to go toSusan "not BHP shares", and the solicitor knew she had some chattels by whichshe placed great store - as evidenced by the care she took in making the specificbequests to Susan and Christine and the grandsons.

[23] Against that background we turn to consider the Judge's reasons forfinding a breach of duty and the remedial orders he then made.

Heron J's conclusions

[24] Referring to the disparities in the financial position of the sisters the Judgesaid it was plain that the testatrix was entitled to distinguish between the two ofthem based on that ground alone. The question was whether the difference that shemade was an appropriate one for a just and wise testatrix to make.

[25] After citing what he described as the conventional authorities of Littlev Angus [1981] 1 NZLR 126 and Re Leonard [1985] 2 NZLR 88 he continued:

"I am clearlyof the view that there is a breach of moral duty in this case. The history ofthis family cannot be overlooked. It seems to me that both daughters and their respectivechildrenwouldhavebrought greatjoy to their mother ... Susan was the undoubted supportand mainstay for her mother for a continuous period of time in Nelson, in the yearsfollowing her husband's death and before her death. Likewise Christinetook over that role


in 1995 and undoubtedly performed it excellently and in a manner that I find Susan couldnot and would not have necessarily done.

"The assets comprise a large number of valuable chattels and represent to some extentthe history of this family and it would seem inappropriate that but a small number should bethe final reward for Susan in this case. It seems to me that the testatrix was in breach of hermoral duty to her albeit well off daughter to recognise the contribution that she had madeover this period of time. The estate in my view even by modem standards is a large one ...There is ample in the estate to provide for Christine recognising her limited circumstancesand future needs.

"Furthermore, I consider that the deceased was probably unaware of the extent of herestate and possibly laboured under a misapprehension as to how much she could provide."

He concluded:

"The primary breach of moral duty in this case is the failure to recognise the position ofSusan in the overall life of the deceased and the contribution that she made in that respect.That was a serious breach of moral duty in my view and it cannot be outweighed by theobvious claim to the estate as the testatrix saw it so far as Christine was concerned."

[26] Counsel for Susan had urged a one-third: two-third split as between Susanand Christine. Without expressing his reasons for rejecting that submission and forhis fmal conclusion the Judge ordered that Susan was entitled to further provisionfrom the estate by way of a share of the residue of the estate, which was to includethe house property, the shares and the chattels, to the extent of 25 percent and thatChristine was entitled to the balance of 75 percent.

Submissions for the appellant

[27] On the argument of the appeal Mr MacKenzie submitted that the Judgeerred in principle in five respects. The first was in stating the question for the Courtas being whether the difference the testatrix made between Susan and. Christine,recognising the disparities in their fmancial position, was an appropriate one for ajust and wise testator to make (para 24). The inherent proposition that anydifferences in disposition and their extent must be justified was wrong. The secondwas that the Judge had failed to consider whether Susan had established a need forproper maintenance and support. While need was not limited to a narrow economicbasis and moral and ethical considerations were to be taken into account, it must beshown that in a broad sense the applicant had need of maintenance and support.Here, Mr MacKenzie said, the fmdings of Heron J (para 25) were inconsistent witha conclusion that she had demonstrated need. The third was that the Judge'sconclusion that there was ample in a reduced share in the estate to meet Christine'sneeds, overlooked that Christine's entitlement was established by the will and itwas for Susan to demonstrate a breach of duty to her, Susan. The fourth andassociated submission was that the Judge erred in holding that this was a largeestate in present day terms. It was not large in itself by today's standards and inrelative terms was not more than sufficient to meet the "needs" of both. The fifthwas that the Judge erred in holding that Susan was entitled to provision from theestate based on contributions she had made over a period of time. He submittedthat the statutory focus was on the need for maintenance and support, not onrewarding for services.

268 Court ofAppeal (Richardson P) 19FRNZ260

[28] While not contending for a radical change in the approach to the exerciseof the s 4 jurisdiction to conform with the statutory proposals of the LawCommission in its recent report, Succession Law, a Succession (Adjustment) Act,Report 39E 31AB, August 1997, he drew attention the concerns expressed in thereport over contemporary decisions under s 4 imposing moral duties to provide foradult children irrespective of fmancial position (Report, paras 30-35 and 72-77).

[29] It was also submitted that, if the claim to further provision was made out,that provision ought to have been less than was awarded and in money not a shareof the residue including the house property and contents.

Submissions for the respondent

[30] Mr Downing emphasised the nature of the appeal and submitted thatHeron J had not erred in principle in exercising the broad discretion reposed unders 4 and that it could not be said that he was plainly wrong in his conclusions.Mr Downing submitted that fmancial need cannot be elevated to a prerequisitebefore a breach of moral duty can be considered by the Court. The test is whetheradequate provision has been made for the proper maintenance and support of theclaimant. What is "adequate" and what is "proper" are relative inquiries notconfmed to fmancial considerations. Here, he submitted, Susan had a justifiableexpectation or need for recognition from her mother that she was a dutifuldaughter, for family heirlooms and family inheritance to be passed down fromgeneration to generation and for "a fair distribution amongst the family members".

[31] The estate, he submitted, was a large estate, large enough to enable thetestatrix to fulfil her moral duties to each of her two daughters. The statutoryinquiry involved an assessment of all circumstances and contemporaryexpectations and the necessary value judgments were for the discretionaryevaluation of the trial Judge. By dividing her large estate (excluding gifts tograndsons) 95 percent to one daughter and 5 percent to the other, the testatrix actedunwisely, unjustly, and contrary to community expectations.

[32] Finally, he submitted, the Judge was entitled, once he had decided therewas a breach of moral duty, to award Susan 25 percent in lieu of the 5 percentunder the will.

Family Protection Act claims - general principles

[33] The original 22-line Testators Family Maintenance Act 1900 was the firstfamily provision legislation in the common law world providing restraint ontestamentary freedom. Testamentary freedom remains except to the extent thatthere has been a failure to make proper provision for the maintenance and supportof those who are seen at the date of death as entitled to such maintenance andsupport. The statutory scheme gives the Court a wide discretion in making thatdetermination. Similar legislation followed in the Australian States and Territoriesand in Canadian Provinces and eventually in 1938 in the UK (see de Groot andNickel, Family Provision in Australia and New Zealand, 1993, paras 104-106).

[34] For many years the immediate reference point in family protection caseshas been the judgment of this Court in Little v Angus [1981] 1 NZLR 126. It wasan oral judgment. It was not a response to any argument as to the principles thatought to be applied under s 4. It did not involve reconsideration of earlier cases.Rather, it sought to summarise well-settled principles applied by the Courts and so


to avoid or reduce the need for Judges and practitioners to traverse a large numberof cases decided over the years. And while there have been numerous cases in thisCourt and the High Court since 1981 in which particular points have beendiscussed, this Court has not had occasion to review those principles.

[35] The summary statement in Little v Angus at p 127 reads:

"The principles and practice which our Courts follow in Family Protection cases are wellsettled. The inquiry is as to whether there has been a breach of moral duty judged by thestandards of a wise and just testator or testatrix; and, if so, what is appropriate to remedythat breach. Only to that extent is the will to be disturbed. The size of the estate and anyother moral claims on the deceased's bounty are highly relevant. Changing social attitudesmust have their influence on the existence and extent of moral duties. Whether there hasbeen a breach of moral duty is customarily tested as at the date of the testator's death; but indeciding how a breach should be remedied regard is had to later events. Experience inadministering this legislation has established the approach in this Court that on an appealthe Court will not substitute its discretion for that of the Judge at first instance unless therebe made out some reasonably plain ground upon which the order should be varied. All thisis so familiar that authorities need not be cited."

[36] The reference there to changing social attitudes is also reflected in theobservation at p 128 that the claims of married daughters were to be approachedsomewhat more liberally than in the past. Similarly, and contrary to earlier cases,the Court in Re Wilson [1973] 2 NZLR 359 considered that adequate provision forwidows was not to be restricted to income and could extend to capital sums. AsMcCarthy P said at p 362:

"the Family Protection Act is a living piece of legislation and our application of it must begoverned by the climate of the time."

[37] Re Leonard [1985] 2 NZLR 88, 92 follows on from Little v Angus andemphasises that mere unfairness is not sufficient and that it must be shown in abroad sense that the applicant has need of maintenance and support:

"The question of whether the testator was in breach of his moral duty to his daughters asclaimants on his bounty must be determined in the light of all the circumstances and againstthe social attitudes of the day. Mere unfairness is not sufficient and it must be shown that ina broad sense the applicant has need of maintenance and support. But an applicant need notbe in necessitous circumstances: the size of the estate and the existence of any other moralclaims on the testator's bounty are highly relevant and due regard must be had to ethical andmoral considerations, and to contemporary social attitudes as to what should be expected ofa wise andjust testator in the particular circumstances."

[38] The expression "moral duty" does not appear in s 4 but it is implicit in theinquiry that the section requires; and its use by Salmond J in Re Allen (dec'd),Allen v Manchester [1922] NZLR 218,220 was endorsed by the Privy Council inBosch v Perpetual Trustee Co Ltd [1938] AC 463 at p 479. The judgment of thePrivy Council also emphasised that "proper" connotes something different from"adequate" and that the amount to be provided is not to be measured solely by theneed of maintenance which would be so if the Court were concerned merely withadequacy.

[39] Similarly, in Re Harrison [1962] NZLR 6 all three Judges emphasised thebreadth of the statutory inquiry. Gresson P said at p 13:


"The 'need' of an applicant, or rather his or her needs - the plural form is I thinkpreferable - cannot be considered in vacuo. What has to be assessed are the merits of theclaim having regard to the applicant's circumstances as at the date of death of the testator;relations between the testator and the applicant in the past; and the extent of his estate andthe strength of other claims."

And he went on to observe that there could be a moral obligation to make aprovision for a daughter or indeed a son, even if that child was comfortablysituated fmancially. North J at p 15 noted that in earlier days the Courts may havebeen inclined to place undue emphasis on economic considerations, and thereforegave insufficient weight to moral or ethical considerations, and after referring toBosch posed the question as being whether, having regard to all relevant matters,the testator has been shown to have been guilty of a breach of his moral duty tomake adequate provision for the proper maintenance and support of the applicant.And Cleary J concluded at p 18 that the judgment appealed from attached rathertoo much importance to the needs of the appellant when considered in the light ofeconomic factors only, and somewhat too little weight to the merits of herapplication when assessed in the light of the moral and ethical factors that enterinto the determination of what is "adequate provision .. , for the propermaintenance and support" of an applicant under the Family Protection Act.

[40] Finally, it is common following Re Allen to speak of two classes of estate.The first and by far the most numerous class consists of those cases in which,owing to the smallness of the estate and to the nature of the testamentarydispositions, the applicant is competing with other persons who also have a moralclaim upon the testator (p 221). The second is where, owing to the largeness of theestate or the nature of the testamentary dispositions, the applicant for relief iscomplaining not of the unjust distribution of an inadequate fund amongdependants, all of whom had a moral claim upon the testator, but of the failure ofthe testator to make out of the abundance of his or her resources a provisionsufficient for the proper maintenance of the claimant (p 222). Applying theConsumer Price Index to the two estates referred to, Re Allardice (1910) 29 NZLR959, considered by Salrnond J to be in the first class, an estate of £20,000 is inpresent day terms equivalent to $2 In, and Re Allen, an estate of £80,000 and saidby Salrnond J to be clearly in the second class, is equivalent to $8 m today.

[41] It may be worthwhile to check external yardsticks before characterisingestates as large. However, it is also important to keep in mind that the assessmentis not simply of the absolute size of the estate but, as emphasised in Re Allen andnumerous subsequent decisions, is also relative having regard to the various claimson it.

[42] There is a considerable volume of law reform material and other analysesin overseas jurisdictions concerning the exercise by Courts of their jurisdiction infavour of adult children who are not asserting economic need, with somesuggestions for restricting awards to meet what are said to be prevailing socialattitudes; and in some cases legislatures have enacted specific provisionsprecluding or curtailing awards to financially independent adult children (eg LawCommission No 61, Second Report on Family Property: Family Provision onDeath, 1974; Law Reform Commission, New South Wales, Report on theTestator's Family Maintenance and Guardianship of Infants Act 1916, LRC 28,1977; Queensland Law Reform Commission, Uniform Succession Laws for


Australian States and Territories, Issues Paper No 2, Family Provision, WP47,1995; Law Reform Commission of British Columbia, Report on StatutorySuccession Rights, LRC 70, 1983; and Manitoba Law Reform Commission, Reporton the Testators Family Maintenance Act, Report 63, 1985).

[43] As well, there is some force in the point made by Williams, Mortimer, andSunnucks, Executors, Administrators and Probate, 1993, at p 761:

"The obligation to provide may derive from a sentiment that family and dependantsought to be left money to live on; or it may derive from a sentiment that they have theprimary right to the deceased's property. These sentiments are different, though related, andwithin the restraints and guidelines provided by the Act and the decided cases they willpoint the court in divergent directions. The sentiment that family and dependants ought tobe left money to live on will point towards a somewhat restrictive exercise of thejurisdiction, emphasising the concept of maintenance. The sentiment that family anddependants have the primary right to the deceased's property will point towards a generousexercise of the jurisdiction, and towards ideas offarnily property."

The emphasis on the restraints and guidelines provided by the Act and the decidedcases is obviously crucial.'

[44] Clearly, too, there are difficulties for the Courts in making their ownunaided assessment of current community attitudes in a complex and changingsocial environment. Social surveys of sufficient reliability may provide someassistance in assessing the public pulse. Green, "The Englishwoman's castle:Inheritance and private property today" (1988) 51 MLR 187, 208, notes that theintestacy rules were reformed in 1925 as the result of a survey of a large number ofwills in Somerset House to see how ordinary people actually behaved and the LawCommission's proposals on matrimonial property were related to the extensivesurvey carried out by Todd and Jones, Matrimonial Property, 1972.

[45] While it is not evident that the limited response to the New Zealand LawCommission's preliminary paper is an adequate barometer of community attitudesin New Zealand and there are difficulties with the Law Commission's reportadverted to by Blanchard J in his judgment at para 68, there are pointers toconcerns that some orders in recent years may have been out of line with currentsocial attitudes to testamentary freedom relative to claims by adult children.

[46] The first is the Report ofthe Working Group on Matrimonial Property andFamily Protection, October 1988. The convenor was Janice Lowe, Chief LegalAdviser of the Department of Justice. The consultants were W R Atkin, VictoriaUniversity of Wellington Law Faculty, Sian Elias QC (now Chief Justice), andLaw Commissioner W J Gendall (now Gendall J) and Margaret Wilson, LawCommissioner (now Attorney-General). Atp 50, after reviewing Re Foote 21/7/88,CAI63/87, where a 37-year-old son with little capital and modest employmentincome who was left one-seventh of the estate of around $350,000, the balancegoing to the testator's wife of 18 years, was awarded an extra $150,000, theworking group concluded that the decision represented a considerable departurefrom earlier interpretations of moral duty; and that:

"There has been a tendency to make awards solely on the basis of a blood relationshipregardless of the need for maintenance and support. Similarly, adult children are awarded ashare of an estate because they are perceived as having a 'right' to inherit a portion of thedeceased parent's property. These awards sometimes reduce bequests to surviving spouses,


widows in particular, frustrate the administration of wills anddeplete estates. As a result theAct, as currently interpreted, encourages speculative claims and is capable of producingwindfalls for claimants who are not in need of maintenance and support even in the widestsenseof these terms."

[47] The second is the survey of 235 cases brought by children between 1985and 1994. The survey was carried out by Nicola S Peart, University of Otago("Awards for children under the Family Protection Act" [1995] Butterworths FLJ224). The estate sizes varied between $5,400 and $1,675,000. One hundred andtwenty-two claims (over 50 percent) were brought against estates under $150,000and 33 (15 percent) above $400,000. The vast majority of claims were by adultchildren who were not financially dependent on the deceased. Over 90 percent ofall claims succeeded. The author concludes that in some cases there was clearevidence of real financial need but in many cases the reason for interfering was theperceived importance of recognising the family relationship (p 225). In the largerestates where the testator is able to satisfy all moral claims owed, the Courtsgenerally seem to award between 20 percent and 12.5 percent of an estate to adutiful child who is not in financial need (p 226). The author concludes that theAct is now more often used to recognise the special bond between parent and childwhich requires parents to leave a portion of their estate to their children regardlessof age or need (p 226). However, at p 227 she notes Tipping J's admonition that"we have not yet got to the stage under the Family Protection Act where there isany presumption as to what testators should do with their property betweenchildren or otherwise" (Re Wilson 5/11/90, Tipping J, HC Christchurch MI9/90).

[48] The third is the important decision of this Court in Re Shirley 6/7/87,CAI55/85. The estate was some $97,000 as at the date of death and some$120,000 at the hearing in the High Court. Under the will one son received assetsworth at death $45,000 and he and the other three sons were entitled to a25 percent share each in the residue, distributable on the death of the widow. TheHigh Court Judge held that the testator had breached his moral duty to the otherthree sons and awarded further provision equivalent in the case of one son to$15,400 and to $13,800 each to the other two. On appeal this Court held, first thatthe emphasis laid by the Judge on the disparity between the benefits conferred bythe will on Graham as compared with those conferred on his brothers was notappropriate; and that what each had to establish was that the provision made forhim by the will was not in the context of his own means and obligations and allother relevant circumstances adequate to provide for his proper maintenance andsupport.

[49] The Court went on to review the individual claims. It concluded that therehad been a breach of duty to one son and made an award in his favour. As to theother two sons, it said:

"We are of opinion that neither Kenneth nor Ian established a breach of moral duty bythe testator. Neitherestablished any relevant 'needs' which he cannotadequately meet fromhis own resources whichby the date of the hearing were substantial. Theirposition as sonsof the testator was recognised by the bequest of a share of residue. The award made,equivalent in eachcaseto about$13,500, wasrightlydescribed by MrBarton as 'just a littlemorethana token'."


The bequest to each son of a share in the residue on the widow's death was inpresent value terms of less than 10 percent of the estate. In short, the Court, whileaccepting that family recognition as distinct from economic need could be thebasis of a duty to provide proper support for an adult child, saw a relatively modestprovision as adequate provision in that regard.

Conclusions

[50] We return to the judgment under appeal. Two material conclusions reachedin Re Shirley are of immediate relevance here. First, and this relates to MrMacKenzie's first submission, in stating the question as in effect being whether thedifference that the testatrix drew between the two sisters was an appropriate onefor a just and wise testatrix to make, the Judge must be seen to have erred for thereasons we gave in Re Shirley (para 48).

[51] While it seems from his subsequent reference to Little v Angus and ReLeonard and the following passage in his judgment (see para 25 which sets out hisessential reasoning) that the Judge did focus on whether there had been a breach bythe testatrix of her duty to Susan, his eventual award based on a 25:75 entitlementas between the sisters would seem to reflect that "extent of the difference"approach.

[52] Second, for reasons which will be apparent from the earlier discussion, wereject the argument that the Court must expressly find a need for propermaintenance and support. The test is whether adequate provision has been madefor the proper maintenance and support of the claimant. Support is an additionaland wider term than maintenance. In using the composite expression, and requiring"proper" maintenance and support, the legislation recognises that a broaderapproach is required and the authorities referred to establish that moral and ethicalconsiderations 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". Achild's path through life is supported not simply by fmancial provision to meeteconomic needs and contingencies but also by recognition of belonging to thefamily and ofhaving been an important part of the overall life of the deceased. Justwhat provision will constitute proper support in this latter respect is a matter ofjudgment in all the circumstances of the particular case. It may take the form oflifetime gifts or a bequest of family possessions precious to its members and oftenpart of the family history. And where there is no economic need it may also be metby a legacy of a moderate amount. On the other hand where the estate comprisesthe accumulation of the family assets and is more than sufficient to meet otherneeds, provision so small as to leave a justifiable sense of exclusion fromparticipation in the family estate might not amount to proper support for a familymember.

[53] In the present case the real question is whether the testamentary bequest toSusan of specified family possessions and the CSR shares having together a marketvalue of some $50,000, or around 5 percent of the estate as at the date of death,was adequate provision for her proper support in that regard. Heron J's conclusionis expressed in terms of a breach of duty in failing to recognise Susan's position inthe overall life of the deceased and the contribution she made in that respect. Butthe testatrix did not fail to recognise Susan. The question is whether she madeadequate provision to discharge the duty to provide her daughter with proper

274 Court ofAppeal (Richardson P) 19 FRNZ260

support in that respect. And with respect to the Judge, the earlier reasoning set outin para 25 is not directly focus sed on that question.

[54] Clearly, the testatrix took considerable care in determining how theparticular family possessions should be distributed and which of those possessionsSusan should receive. We cannot see any basis for the Court, acting under s 4, todiffer from that assessment of what is adequate provision for proper support forSusan in that regard. However, we have in the end concluded that that provisionand the bequest of the CSR shares was not adequate provision overall in all thecircumstances. We are of the view that Heron J was entitled to conclude that thedeceased was probably unaware of the full extent of her estate. There is nothing tosuggest that she appreciated at the time of her death that her estate was worth$920,000 or thereabouts, and in particular that her shares were worth so much. Itwould seem that in concluding in October 1988 that her estate would not reach the$450,000 level attracting estate duty, she must, having regard to the house andchattels, have assessed the shares and the bank deposits at significantly less thanthey were worth by January 1996 when she died. And it is unclear whether, and ifso to what effect, she addressed her mind to the possible incidence of estate dutiesat the time she made her February 1992 will.

[55] We turn fmally to the difficult question of the amount required to redressthe failure to make adequate provision for the proper support of Susan in theparticular circumstances. In our view it is, at least ordinarily, inappropriate toaward a share in residue as such and to redraw the will in that way. We alsoconsider that a legacy designed to serve the limited purpose of supplementing therecognition of Susan's family belonging already provided under the will wouldhave to be of a relatively moderate amount and that an additional sum of some$200,000, as in effect has been provided here, must be regarded as excessive. Theparticular amount is necessarily an exercise of judgment and we assess theadditional provision required at $50,000.

Result

[56] The appeal is allowed. The orders made in the High Court (except theorders as to costs) are quashed and in lieu it is ordered that the plaintiff, SusanMary Aucutt, is entitled to the sum of $50,000 as further provision out of the estateof Lilian Beatrice Henderson. The appellant is entitled to costs on the appealagainst the plaintiff which are fixed at $5,000 together with all reasonabledisbursements as fixed, if necessary, by the Registrar.

BLANCHARD J: [57] I agree with the judgment delivered by Richardson Pwhich I have read in draft.

The extent of a deceased's moral duty

[58] Section 4(1) uses the language of "adequate provision ... for ... propermaintenance and support" of those entitled to make application under the Act. Butit has become customary for Judges to refer to the deceased's "moral duty" and infact Parliament itself adopted that terminology in 1967 when adding s 3(2) to thestatute and directing the Court "in considering the moral duty of the deceased" tohave regard to certain matters upon an application by a grandchild.


[59] In Bosch v Perpetual Trustee Co Ltd [1938] AC 463, 476 the Privy Councilsaid that the use of the word "proper" in this context was of considerableimportance, and that it connotes something different from "adequate":

"A small sum may be sufficient for the 'adequate' maintenance of a child, for instance,but, having regard to the child's station in life and the fortune of his father, it may be whollyinsufficient for his 'proper' maintenance."

[60] Their Lordships went on to state (at p 478):

"The amount to be provided is not to be measured solely by the need of maintenance. Itwould be so if the Court were concemed merely with adequacy. But the Court has toconsider what is proper maintenance, and therefore the property left by the testator has to betaken into consideration."

[61] This Court was influenced by the latter passage in Re Harrison (dec'd),Thomson v Harrison [1962] NZLR 6, where Gresson P said (at p 13):

"It is rather unfortunate that there has crept into the cases over the years a dispositionsometimes to consider first the 'need' of the applicant and then to tum to a consideration ofthe extent of the estate and other claims there might be upon the testator. Theseconsiderations do not admit of separate consideration; they are inter-related. The 'need' ofan applicant, or rather his or her needs - the plural form is I think preferable- cannot beconsidered in vacuo. What has to be assessed are the merits of the claim having regard tothe applicant's circumstances as at the date of the death of the testator; relations between thetestator and the applicant in the past; and the extent of his estate and the strength of otherclaims. A child might be in most necessitous circumstancesyet because of the smallness ofthe estate and the necessity for the testator to make proper provision for a widow theremight be no moral obligation upon him to do anything to relieve the child's necessity. Sotoo a child might be in a reasonably strong financial position yet because of the size of theestate a testator might be under a moral obligation to allow him or her to participate to somedegree in the distribution of his estate."

And (at p 14):

"But it is not necessary in order to establish a claim under the Family Protection Act thatthe applicant should be in necessitous circumstances. There can be a moral obligation tomake a provision for a daughter, or indeed a son, even if that child is comfortably situatedfinanciallyeither by reason of his or her own property or in the case of a daughter, as we areconcerned with, because she is married to a man who has considerable assets or a goodincome or both. In considering whether there is a moral obligation, regard is had not only tothe needs of the applicant but also to the extent of the estate which the testator had todispose of and to the claims which other persons had upon him."

[62] North J considered that perhaps in earlier days the Courts may have beeninclined to place undue emphasis on economic considerations, and therefore gaveinsufficient weight to "moral or ethical considerations" (p 15). And Cleary Jexpressed the following view (at p 18):

"In my respectful opinion the judgment appealed from attaches rather too muchimportance to the needs of the appellant when considered in the light of economic factorsonly, and somewhat too little weight to the merits of her application when assessed in thelight of the moral and ethical factors that enter into the determination of what is 'adequateprovision ... for the proper maintenance and support' of an applicant under the Family

276 Court ofAppeal (Blanchard J) 19 FRNZ 260

Protection Act. As late as Welsh v Mulcock [1924] NZLR 673; [1924] GLR 169, thereremained some difference of opinion between those who, like HerdmanJ in that case, wereinclinedto confinethe inquiry to actual needs, and those who, like Salmond J, preferred toemphasise in addition the deserts of the claimant and the relative urgency of the variousmoralclaims upon the testator's bounty. Ever since that case, however, it has been acceptedthat the view of Salmond J lays down the proper criterion to be applied, and it isunnecessary to do more than refer to the approval of that view given by the Privy Council inBosch v Perpetual Trustees Co [1938] AC 463, 478; [1938] 2 All ER 14,20. 'The amountto be provided is not to be measured solely by the need of maintenance', and I think it isinherent in this statement that the obligation to make provision is not to be conditionedsolely by the need of maintenance considered only from an economic point of view. Now,in the present caseit seems to me that stress on the economic aspect of the appellant's needsis apt to minimisetwo factors which lend weight to her moral claimto have some provisionmadein her favour."

[63] The two factors mentioned by C1eary J were that the claimant was thetestator's only child for whom he had during his lifetime done virtually nothing,and that he had left the whole of his sizeable estate to her stepmother though thegreater part of it had been inherited within a few years of his death from his uncleand his father, the claimant's blood relatives.

[64] The claimant in Harrison had property of her own but was married to aman whose assets were slightly greater than the value of the deceased's estate.(Gresson P described her as being in a comfortable and secure position. Hersituation would be even more secure today by virtue of the Matrimonial PropertyAct 1976.) The widow/stepmother was also comfortably placed with assets of herown and an inheritance from her father, as well as what she had been left under thedisputed will. In these circumstances this Court ordered that the claimant shouldreceive a legacy equivalent to 11.71 percent of her father's estate.

[65] In Little v Angus [1981] 1 NZLR 126, 128 this Court made the commentthat the claims of married daughters are to be approached "at the present day"somewhat more liberally than in the past, having noted earlier (p 127) thatchanging social attitudes must have their influence on the existence and extent ofmoral duties.

[66] In Re Leonard [1985] 2 NZLR 88, the Court dismissed an appeal from anorder of the High Court increasing to $40,000 each legacies of $4,000 given, alongwith some chattels, to two "dutiful" daughters under the will of a farmer whoseestate in 1978 was $746,000. The deceased had left his farming properties to threesons. Both daughters were married and each marriage partnership owned assets of$175,000 to $185,000. The Court rejected an argument that each of them was in sostrong a fmancia1 position that no duty rested upon the testator to make provisionfor them at all or going beyond what was provided under the will.

[67] Richardson J commented (at p 92):

"The questionof whetherthe testator was in breachof his moral duty to his daughters asclaimants on his bountymust be determined in the light of all the circumstances and againstthe social attitudes of the day. Mere unfairness is not sufficientand it must be shown that ina broad sense the applicanthas need of maintenance and support. But an applicant need notbe in necessitous circumstances: the size of the estate and the existenceof any other moralclaimson the testator's bounty are highly relevant anddue regardmust be had to ethical andmoralconsiderations, and to contemporary social attitudesas to what should be expected ofa wise andjust testatorin the particular circumstances."


[68] In the last few decades an expansive view appears to have been taken ofthe power of the Court to refashion the will of a deceased in order to fulfil whathas been regarded as his or her moral duty. This trend has not met with universalapproval, as reference to the working group's report of 1988, mentioned by thepresident, and to the Law Commission's report in 1997 will confirm. I would notwish to be thought to endorse all that the commission has said on the subject of theclaims of adult children. I venture to suggest that it has taken a rather extremeposition. Nonetheless, there is substance in the criticisms of the way in whichCourts sometimes apply the present law. It is to be remembered that the Court isnot authorised to rewrite a will merely because it may be perceived as being unfairto a family member, and it is not for a beneficiary to have to justify the sharewhich has been given. Rather, it is for a claimant to establish that he or she has notreceived adequate provision for proper maintenance and support.

[69] We are not concerned in this appeal with a claimant's need for propermaintenance. It is conceded that there is none. The claim is for proper support inthe form of recognition both of membership of the family of the deceased and ofcontributions by way of assistance to and support of the deceased. Such a claim isone capable of being brought under the Act. In part it seeks support from the estatein return for support which has been rendered, albeit without any promise ofretumsuch as would fall within the Law Reform (Testamentary Promises) Act 1949. Thequestion remains, however, whether a need for proper support is made out in theparticular circumstances. It is not to be assumed that merely because a claimant, nomatter what his or her personal substance, has been a dutiful child of the deceased,it will necessarily be appropriate to order some provision or further provision. Insome cases a mere acknowledgment of the relationship may be the most that canbe expected. And in others the competing claims on the testator of a survivingspouse or of less fortunately placed siblings may negate any moral duty towards awealthy claimant.

[70] It is not for the Court to be generous with the testator's property beyondordering such provision as is sufficient to repair any breach of moral duty. Beyondthat point the testator's wishes should prevail even if the individual Judge might,sitting in the testator's armchair, have seen the matter differently. As I have said,the Court's power does not extend to rewriting a will because of a perception thatit is unfair. Testators remain at liberty to do what they like with their assets and totreat their children differently or to benefit others once they have made suchprovisions as are necessary to discharge their moral duty to those entitled to bringclaims under the Family Protection Act.

The content of the affidavits

[71] The resolution of this unfortunate dispute between the two sisters has notbeen assisted by the voluminous affidavits made by them or on their behalf which,as is all too common in family protection proceedings, traverse, often irrelevantly,the minutiae of what each alleges was the conduct of herself and her sister towardseach other and their mother. If at the end of the day they reflect on the size of thelegal bills which have inevitably flowed from their contest, they should notoverlook the impact of their respective decisions to mention at such length materialwhich was never going to influence the outcome. It is a comparatively rare casewhere denigrating the character and motives of a family member will assist thecause of another in the eyes of a Judge trying a family protection proceeding.

278 Court ofAppeal (Blanchard J) 19 FRNZ 260

Conclusions[72] It helps to focus on the essential facts. Mrs Henderson had an estate which

at the date of her death comprised assets with a value of close to $1 m. At that timeone daughter, Susan, was, by her own admission, not in any fmancial need norever likely to be so. The assets of herself and her husband exceeded those of theestate. Her claim is entirely for recognition of her role in the life of her mother andas a family member. Upon the evidence it cannot be said that she made a greatercontribution to her mother's welfare than most daughters with an elderly mother.

[73] Mrs Henderson was obviously conscious of the very considerable disparitybetween the straightened fmancial position of Christine and the comfortablelifestyle of Susan. She would have been well aware also of the reasons for thatdisparity. She chose nevertheless to provide recognition for Susan in the form of aselection of family treasures including a painting and a teaset, both of which shepresumably felt would have some sentimental as well as economic value for Susan.She also gifted her the small parcel of CSR shares. She explained the limited extentof that bounty in cl 9 of the will.

[74] In my opinion, but for one factor, such provision, amounting in economicvalue to the not inconsiderable sum of $50,000 (more than many New Zealanderspossess), would have been sufficient to discharge her moral duty to Susan incircumstances where her sister Christine was in obvious need of maintenance, notto say support. That one factor is Mrs Henderson's apparent misunderstandingabout the size of her estate. It is impossible to say exactly what she thought herassets amounted to but the remarks she made to Mr Williams in giving instructionsfor the 1988 will suggest that she seriously underestimated the value of the BHPshares. He says she spoke of her Australian shares as if they were of no greatvalue. After the last will was made there also occurred the favourable impact of theremoval of estate duties (40 percent on value over $450,000) which probably wasnot anticipated or understood by the testatrix. Unfortunately, neither the evidencenor the submissions addressed this point. She may have taken a different view ofher moral obligation to Susan if she had appreciated how much the net value of herestate increased in the absence of duties.

[75] I have concluded that if Mrs Henderson had realised the extent of the networth to be distributed in terms of her will, she would have reappraised itsprovisions so far as Susan was concerned. A fair and just testatrix would have doneso and would have taken the view that, so much more being available, a somewhatgreater recognition of Susan's role in the family and relationship with her motherwas required as a matter of moral duty.

[76] This is obviously not an area in which an assessment can be made with anyprecision. Opinions may differ. But in my view a daughter in Susan's positioncould not expect proper "support" to a greater extent than a provision of about$100,000 which happens to be around 10 percent of the estate. As, on her ownestimation, she is already to receive about half that sum, I consider that she shouldnot have been awarded further provision of more than about $50,000.

[77] In my view the award of a 25 percent share in the estate went far beyondthe sum necessary to provide proper support. The Judge must, I think, have beenunduly influenced by the extent of the difference in the way in which the willtreated the two daughters, instead of concentrating on the extent of Susan's moral


claim. I conclude that as a result he has not exercised his discretion on anappropriate basis.

Appeal allowed; further provision of$50,000 made for respondent

Reported by Jennie Christianson

(2000)_19_frnz_260

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