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Court of Appeal of New Zealand |
Last Updated: 12 December 2011
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IN THE COURT OF APPEAL OF NEW ZEALAND
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CA26/01
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BETWEEN
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MICHAEL JOSEPH BYRNE, CATHERINE MARY BYRNE, ANDREW JAMES BYRNE, MAURICE
LEONARD CRONIN, FREDERICK WALTER ROGERS and PAULINE ROWLANDS
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Appellants
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AND
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JOHN JOSEPH BISHOP, MARGARET BISHOP, TIMOTHY JOHN BISHOP, LOUISE ROSA
BISHOP and RACHEL VIVIEN BISHOP
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Respondent
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Hearing:
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1 August 2001
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Coram:
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Gault J
Blanchard J McGrath J |
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Appearances:
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M R Camp QC and G J Thomas for Appellants
I D Matheson for Respondents |
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Judgment:
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14 August 2001
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JUDGMENT OF THE COURT DELIVERED BY BLANCHARD
J
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Introduction
[1] The appellants are the next of kin of Daniel Bernard Byrne, known as Danny Byrne, who died on 5 October 1996 without having made a valid will. He had in fact made a will on 12 March 1995 in favour of the respondents, the Bishop family, neighbours and distant relatives who had befriended him. But probate of that will was recalled by the High Court in April 1999 because it was held that Mr Byrne had lacked testamentary capacity when the will was executed. This Court dismissed an appeal against that decision (Bishop v O’Dea, CA120/99, 20 October 1999) but commented:
In purely moral terms the Bishops ought to receive a significant part of Mr Byrne’s estate in recognition of their close relationship with him and the support and comfort they gave him during the last period of his life.
[2] The Bishops have now succeeded by means of a claim under the Law Reform (Testamentary Promises) Act 1949 (the Act) in obtaining from the High Court an order that one of Mr Byrne’s two dairy farms (the Skeet Road farm) is vested in the Bishop children together with payments already made from the estate to the Bishop family and estate chattels already received by family members, but subject to payment of half the debts of the estate. That leaves in the estate for the next of kin the Rama Road farm, subject to payment of half the debts. The value of the benefits awarded to the Bishops has been the subject of some debate by counsel but certainly exceeds $1.4 million out of an estate of about $2.5 million.
[3] The next of kin, relatives of Mr Byrne with whom he had little contact in the last 20 years of his life, are not content with that position and appeal to this Court. As Mr Camp QC’s argument for the appellants progressed, they appeared to accept that the Bishop family have established a claim under the Act but said that there is a discrepancy between the assets awarded and the services rendered; and that because of the competing moral claims of the next of kin and their historical family ties to both farms, a monetary award would be more appropriate. It was submitted that the award should be of a much lesser amount; Mr Camp said $500,000 would be “beyond the scope of the services” when reciprocal benefits from Mr Byrne to the Bishops were taken into account.
[4] The case has some notable, and to some extent quite extraordinary, features:
- [a] The nature of the services of the Bishops to their neighbour;
- [b] The setting aside, only because of a temporary loss of capacity, of a will made in fulfilment of the promises made to the Bishops;
- [c] The next of kin not being persons who would have been entitled to bring a claim under the Family Protection Act 1955 if the will had been valid; and
- [d] The claims of some of the next of kin under the 1949 Act, made as an alternative to the application to set aside the will, having been dismissed by the High Court because the services which they relied upon were minimal or non-existent.
The Act
[5] In relevant part, s3 of the Act reads:
3. Estate of deceased person liable to remunerate persons for work done under promise of testamentary provision
(1) Where in the administration of the estate of any deceased person a claim is made against the estate founded upon the rendering of services to or the performance of work for the deceased in his lifetime, and the claimant proves an express or implied promise by the deceased to reward him for the services or work by making some testamentary provision for the claimant, whether or not the provision was to be of a specified amount or was to relate to specified real or personal property, then, subject to the provisions of this Act, the claim shall, to the extent to which the deceased has failed to make that testamentary provision or otherwise remunerate the claimant (whether or not a claim for such remuneration could have been enforced in the lifetime of the deceased), be enforceable against the personal representatives of the deceased in the same manner and to the same extent as if the promise of the deceased were a promise for payment by the deceased in his lifetime of such amount as may be reasonable, having regard to all the circumstances of the case, including in particular the circumstances in which the promise was made and the services were rendered or the work was performed, the value of the services or work, the value of the testamentary provision promised, the amount of the estate, and the nature and amounts of the claims of other persons in respect of the estate, whether as creditors, beneficiaries, wife, husband, children, next-of-kin, or otherwise.
(2) This section shall apply –
(a) Whether the services were rendered or the work was performed before or after the making of the promise:
(b) Notwithstanding anything to the contrary in section 4 of the Statute of Frauds 1677, or section 2 of the Contracts Enforcement Act 1956, or any other enactment.
(3) Where the promise relates to any real or personal property which forms part of the estate of the deceased on his death, the Court may in its discretion, instead of awarding to the claimant a reasonable sum as aforesaid, –
(a) Make an order vesting the property in the claimant or directing any person to transfer or assign the property to him; or
(b) Make an order vesting any part of the property in the claimant or directing any person to transfer or assign any part of the property to him, and awarding to the claimant such amount (if any) as in its opinion is reasonable in the circumstances.
...
(6) The Court shall have power, after hearing such of the parties as may be affected as it thinks necessary, to exonerate any part of the estate of the deceased from the incidence of any such payment or payments, to determine priorities as between any benefit awarded by the Court to the claimant under this Act and the beneficial interests of any other person or persons in the estate of the deceased person, and to make such provision as it thinks fit as to the incidence of the whole or any part of the debts, testamentary expenses, and duty in respect of the estate of the deceased. For the purposes of this subsection the Court may direct any executor or administrator to represent, or appoint any person to represent, any such party.
(7) Any order under this section, or any provision of any such order, may be made upon and subject to such terms and conditions as the Court thinks fit.
...
A “promise” is defined in s2 as including “any statement or representation of fact or intention”.
The application of the Act
[6] To qualify as “services” or “work” under the Act, what has been done for the deceased must have been beyond the normal expectations of family life or social interaction. Services can include not only things done for the deceased but also companionship, affection and emotional support exceeding what is normally to be expected of a relative, a member of the same household, a neighbour or a friend. This Court said in Thwaites v Keruse (1993) 11 FRNZ 19, 23:
Companionship, affection, cohabitation, may properly be regarded as “services” in some circumstances, where for example the promisor is elderly or lonely or in poor health. But that cannot be so in the case of young people simply sharing together the pleasures of each other’s company in a common household.
[7] The mere fact that what was rendered to the deceased was intangible and of a value incapable of precise monetary assessment does not prevent it being a service (Hawkins v Public Trustee [1960] NZLR 305, 313).
[8] The term “promise” under the Act covers declarations which might not fall within a dictionary definition of that word and certainly goes beyond any contractual context (Jones v Public Trustee [1962] NZLR 363). It includes a statement or representation of present fact (“I have done X for you in my will”) or intention (“I will do X for you in my will”) made either before, during or after the services or work occur (s3(2)).
[9] As s3(1) speaks in terms of “the rendering of services to or the performance of work for” the deceased and a “promise” by the deceased to reward the services or work by making a testamentary provision, it is clear that some nexus or linkage is required between the services and the promise (in whatever sequence they occur). But s3(1) does not say that the services or work must come from or be done by the claimant. The section therefore covers a situation in which the claimant is not the person to whom the promise is made; in which, for example, the deceased indicates to a parent an intention of making a testamentary provision for that person’s child as a reward for something done or to be done for the deceased by the parent. This is not surprising. It would be a very natural reaction of persons whose caring nature led them to render services or perform work “beyond the call of duty” to respond to an announcement by the recipient of a desire to provide a testamentary reward by saying “Don’t do it for me; if you feel you must do something, do it for my child”. The Act would enable a claim by the child even, we think, where the parent was aware of the promise during the lifetime of the promisor but the child was not.
[10] The motive of the person rendering the services or doing the work is of little importance. In truth, it can really be of no importance where the promise is to reward things done for the promisor in the past (Jones v Public Trustee at 375). The requirement that there must have been a “promise” to reward the claimant is directed to the purpose of the promisor’s provision rather than the motivation of the promisee and it is sufficient that the promise be in part only as a reward for services; family ties and other considerations may also have influenced the making of the promise (Leach and Booth v The Perpetual Trustees Estate and Agency Company of New Zealand Ltd, CA48/88, 20 March 1990). It would be repugnant if the fact that the services or work were performed out of a generous spirit and not for mercenary reasons or in the hope of reward should count against claimants by way of depriving them of a claim or devaluing it.
[11] Section 3(1) enables the claim to be enforced against the estate of the deceased as if it were “a promise for payment by the deceased in his lifetime of such amount as may be reasonable”. What is reasonable is to be assessed having regard to all the circumstances of the case, but some are specified in the section:
Other circumstances which ought to be taken into account in arriving at a reasonable quantum of award will include the value of reciprocal benefits conferred by the deceased during his or her lifetime. Section 3(1) makes a claim enforceable only to the extent that the deceased fails to make testamentary provision “or otherwise remunerate the claimant”. Benefits conferred by the deceased directly on the claimant or, we think, on the claimant’s family may have to be “netted off” against the value of the services or work performed for the deceased.
[12] Speaking for the Privy Council in Re Welch [1990] 3 NZLR 1, 6, Sir Robin Cooke noted that Parliament had in 1961 discarded a provision that when the promise specified an amount, the claim was enforceable automatically for that amount:
So it is plain, considering s3(1) as a whole, that whenever a claim to relief is made out under it the criterion as to the relief to be granted is reasonableness. That is always the result at which the Court is to aim, no matter whether the award is of money or of specific property. If the deceased promised a certain sum or a certain property, that is a relevant consideration but not necessarily decisive.
[13] Accordingly, the Judicial Committee said, “a large amount of judicial discretion must enter into the administration of the Act” and “the Court of Appeal will not substitute its discretion for that of a Judge at first instance unless some reasonably plain ground is made out for doing so, and ... the trial Judge’s advantages in hearing the evidence orally are also to be borne in mind”. Nevertheless, it is desirable, the Board said, that a reasonable degree of judicial consistency be achieved in exercising the statutory discretion. Later in their advice their Lordships said that an assessment, even a generous one, by a promisor able to exercise a sound judgment would not lightly be departed from. Although the award must be not more than reasonable recompense for services or work for the deceased, a liberal approach was fitting, especially so when there were no competing moral claims.
The Byrne family
[14] The relationship of the next of kin to Mr Byrne and the basis upon which they claim a moral right to both of his farms needs to be explained. In the account that follows the appellants are identified in italics.
[15] Mr Byrne’s parents were James and Pauline Byrne who married in 1929. At that time James already owned the Skeet Road farm. James was Pauline’s second husband. By her first marriage to a Mr Rogers she already had two children, Fred Rogers and Josephine. She had purchased the Rama Road farm before she married James. She and her two children lived with James on the Skeet Road farm. James and Pauline had two children, another James (in 1929) and Danny (in 1931).
[16] Fred Rogers lived on the Skeet Road farm until he was 18 and later worked for some years on the Rama Road farm and was its manager for a time. His sister Josephine married and had two children, Maurice Cronin and Pauline Rowlands. After that marriage broke down they lived with Fred Rogers on the Rama Road farm for about six years.
[17] Danny Byrne’s brother, James, married his wife Venna and left the Skeet Road farm in 1960 when he was about 30. James and Venna had three children, Michael Byrne (in 1962), Catherine Byrne (in 1964), and Andrew Byrne (in 1967). Before the marriage the two brothers, James and Danny, had been joint sharemilkers, but Danny then became the sole sharemilker on the Skeet Road property. In 1964 and 1965 respectively James and Pauline sold their farms to Danny, with the whole of the price in each case being secured by mortgages back to the parent. A gifting programme was instituted to reduce the mortgages.
[18] In 1976 Pauline and James Byrne died within three days of one another and within three months their son James also died (of a heart attack), leaving only a small estate to his widow.
[19] By this time the value of the two farms had risen considerably (to about $500,000) and the gifting programme had reduced the mortgages to quite a small sum.
[20] Venna Byrne and Fred Rogers brought Family Protection Act claims against the estates of James and Pauline Byrne. These resulted in 1980 in awards of $10,000 for Venna’s children, Michael, Catherine and Andrew, and $12,500 for Fred Rogers.
The deceased and the Bishop family
[21] The Bishop family owned a dairy farm directly across Skeet Road from Mr Byrne’s farm. It takes about two minutes to walk from one farmhouse to the other.
[22] Mr & Mrs Bishop have three adopted children, Rachel (born in 1972), Louise (1975) and Timothy (1978).
[23] The High Court judgment of Nicholson J, delivered at New Plymouth on 21 December 2000, records that Mr Byrne began drinking heavily after his parents died. It seems that the drinking was brought about because he was lonely. In January 1977 he suffered a stomach haemorrhage. Venna and her children visited him in hospital and he stayed with them after he was discharged. This seems to have been the last time there was more than a transitory contact between that branch of the family and Mr Byrne.
[24] He was away from the farm for about five weeks during which time Mr & Mrs Bishop looked after it. Mr Bishop was distantly related to Danny Byrne but there was no evidence supporting the view that this led to the close relationship which then began to form between Mr Byrne and the Bishop family. That relationship grew out of their being immediate neighbours.
[25] From 1978 Mr Byrne had sharemilkers on both his farms.
[26] The judgment below records:
[23] The services and work given by the Bishop family to Danny started in January 1977 when Mr and Mrs Bishop looked after his Skeet Road farm and stock when he was in hospital. His house was one of the oldest in the district. It had been virtually left untouched since his parents had died and was almost derelict. The cupboards were full of clothes that had been left there by his parents. The house was filthy. The hot water was permanently turned off, the bath was full of holes, there were rats under the house and possums in the cupboards. There were dishes everywhere in the kitchen. After his parents’ death, Mrs Bishop went over and saw Danny at his workshop. She was worried as she had not seen him for two or three days. It was obvious that he had been drinking. She had a talk to him. He was in tears. Mrs Bishop told him he had a lot to live for and it would do him no good to continue drinking. She told him he was more than welcome at the Bishop house. Danny told her he had been told by his doctor that if he continued to drink he would die.
[24] The person who brought Danny back from hospital in early 1977 brought him to the Bishop house for a cup of tea. Mrs Bishop knew Danny was not eating properly before his illness and asked him whether he had received a diet sheet. He told her he had and so she suggested that she cook some meals for him to give him some idea about what he should be eating. She invited him to take meals with her family. As far as Mrs Bishop knew, ever since Danny started coming to their place in 1977, he never cooked a meal himself. I accept Mrs Bishop’s evidence that from early 1977 Danny hardly ever left the Bishop’s place except to go home to sleep and to work in his workshop or garden. In effect he became a member of the Bishop family.
[27] Louise Bishop said in her brief:
4. FOR as long as I can remember, Danny was treated as part of the family. Except for the odd occasion, Danny would come to our house for all of his meals. As I remember the normal pattern was that he would turn up during the morning milking between about 6.30am and 7.30am. He would help my father with the milking and would then come to our house for breakfast. On many occasions he would stay at our house throughout the morning and have morning tea. Sometimes he would go away into town or do odd jobs at his place. Unless he was in town or away for some other reason, he would usually have lunch at our house.
[28] There was evidence from one of Mr Byrne’s sharemilkers, Mr Sean Kiernan, that if he was not visiting the Bishops, Mr Byrne “did not cook himself regular food”.
[29] A friend of the Bishops, Mrs Tippett, described how Mr Byrne would holiday with them and help with the milking and haymaking. She commented:
Their loving acceptance of him provided him with the pleasure of a happy family life that he, being a bachelor, would probably not have otherwise known.
[30] The “help” with farm work needs to be put in context. Mr Bishop said that Mr Byrne came to the milking “when he felt like it”:
If he was there when we started he was there, if he wasn’t he wasn’t. He didn’t have to milk with us, he just wanted to.
Did you have any kind of arrangement with him about working in the milking shed...None whatsoever, Danny was there for the company.
Did you ask him to be there...No.
[31] Timothy Bishop testified:
Did he always turn up when milking started...Not always, whenever he woke up, if he felt like he didn’t want to show up he didn’t, if he wanted to show up and help whenever.
What sort of work did he do in the milking shed...He’d either wash or put the cups on or take the cups off, it was all pretty easy but if there was the 3 of us in the shed it was more of a yakking session than anything.
You obviously knew Danny well. Do you know why it was that he went to the milking shed in the morning and afternoon...Yes, he really liked the company, he’d be able to have a conversation with you and just generally that’s where we were at milking times and we were there to talk to so he was there too to have the company.
Was it a situation where he had to be there...No. If he felt he didn’t want to do it he wouldn’t have been there.
Did he actually make the milking process much quicker by being there or did he make any difference to the speed at which the milking was carried out in the morning...Yes, it would have been a little bit faster but I mean we never minded how long it actually took anyway.
So when you say it might have made it a little bit faster, can you give us some idea how much quicker you would have been able to do it if Danny was there compared if he wasn’t there...10 minutes, it isn’t overly hard to milk, if you have 2 people you don’t have to walk around so much.
[32] This view was confirmed by Mr Kiernan, a witness whose attitude about Mr Byrne may have been coloured by the memory of a dispute between the two of them, but who was called on behalf of the next of kin. Mr Kiernan said also that during haymaking:
Apart from baling the hay I couldn’t guarantee he did anything but be a nuisance.
[33] All three children regarded Mr Byrne like a family member. Mr Byrne and Timothy became particularly close and spent a great deal of time together on projects such as modifying a go-cart and working on vehicles.
[34] For about 12 years Mr Byrne seems to have largely abstained from drinking. He started binge drinking again about 1989, although weeks would go by during which he would not touch alcohol.
[35] Until 1993 he continued to live in the old derelict home but in that year he decided to build a new house. Mr & Mrs Bishop helped him with the designing, setting up and furnishing of the home. Mrs Bishop commented:
I spent many hours helping Danny with the building of the new house. I worked on the colour schemes and kitchen design with him. The builder would come and see him at our house. I was amused when I found that his pantry was set up exactly as mine was. All of the kitchen utensils were set up exactly the same way as they were in my kitchen. Danny knew what my pantry was like because it was his job to unload the dishwasher at our house. Danny always cleared up after tea and stacked and started the dishwasher so it would be done for him to unpack before he went home later in the evening.
[36] The relationship continued as it had done since 1977, interrupted only by the drinking binges. Mrs Bishop would not allow Mr Byrne in her house when he was drinking. She had made that clear right from the beginning of the relationship. At other times he still had all his meals with the Bishops.
[37] There is no dispute that from about 1990 Mr Byrne told the Bishops on several occasions that he intended to leave the Skeet Road farm to Timothy and the Rama Road farm to Rachel and Louise equally. All the Bishops gave evidence to this effect, except Louise. But she said she had been told during Mr Byrne’s lifetime by her parents what he had said to them on this subject.
[38] Independent witnesses also testified to being told by Mr Byrne what he would do by will for the Bishop children and, of course, there is the evidence of the will itself in 1995 with which Mr Byrne afterwards expressed satisfaction (but unfortunately for the Bishops did not confirm by codicil). Although at the time of execution, it has been found, he did not have testamentary capacity, it is accepted for the appellants that during the period when the promises were made Mr Byrne had contractual capacity. It should be added that the Bishops played no part in the making of the will.
[39] Mr Byrne’s death in 1996 was as a result of another drinking bout. He was found dead in his new house by Timothy Bishop. The appellants, who had themselves been conspicuous by their absence from the life of the deceased for almost 20 years, have tried to make something of the fact that his body was not discovered for over a day. They did not, in our view, assist their case by making such an argument.
The High Court judgment
[40] Nicholson J found that the affection, companionship and support which each of the Bishops gave the deceased between 1977 and his death in 1996 did not occur in the context of a normal family relationship and that they had each rendered services to him within the meaning of s3(1). He found also that Mr Byrne had promised to make testamentary provision for the Bishop children by giving Timothy the Skeet Road farm and Rachel and Louise the Rama Road farm. He concluded however, that claims by Mr & Mrs Bishop themselves failed because the only evidence of any promise to reward them was to the solicitor who prepared the will (which provided for Mr & Mrs Bishop and Rachel and Louise to share the residue of the estate) and that had not been communicated to them before Mr Byrne’s death. The promise to Louise had, however, been communicated indirectly during his lifetime. Although Mr & Mrs Bishop are respondents to the appeal, they have not brought any cross-appeal.
[41] The Judge next found that the promises to the Bishop children had been inspired, at least in material part, by a wish to reward them for their services and work for him, both past and anticipated, and were
partly motivated by gratitude for what the children and their parents had done for him in the past and undoubtedly had a strong element of wishing to bind the children to him in future to continue regarding and treating him as their adopted father and friend.
He held that there was a sufficient nexus between the services and work and the promises.
[42] The Judge found also that the testamentary provision had not been achieved. No provision had been made out of Mr Byrne’s estate. Money, chattels and services had been given by him to the Bishops during his lifetime but these were not of the magnitude of his promise to leave them the farms, although they would be taken into account in deciding the amount or property it was reasonable to award under s3.
[43] Turning to the question of reasonable amount or property, and directing himself in accordance with Re Welch, the Judge said:
[67] In this case the claimant Timothy Bishop provided the services of a surrogate son to Danny for 18 years. Over the four years before Danny’s death these services developed to the extent of being a constant companion, working on mutual interests such as machinery and vehicles, attending field days together and acting as chauffeur. Rachel and Louise Bishop were surrogate daughters for Danny from infancy. The three Bishop children and their parents combined to give Danny the love, companionship and domestic benefits of close family membership when legally and in fact he was not closely related to any of them. The mental and physical value of this was priceless. It cannot be calculated but must be regarded as very high. Before Danny joined the Bishop family he lived a lonely and squalid life as a hermit and was drinking himself to death. When the fatal flow of his life became clear to Danny on his hospitalisation in January 1977 he grasped the lifesaver offered by the Bishop family and thereafter as an adopted member of that family enjoyed a quality of life which before then had been despairingly absent. This saved him from misery and squalor and undoubtedly extended the span of his life.
[68] Just as it is impossible to put a monetary value on the services which each of the three Bishop children provided for Danny, so is it impossible to put such a value on the overall benefit he received from the services of the Bishop family. I consider the value of the services of each of the Bishop children should not be considered in isolation but in the context of the services provided by the family as a whole.
[44] The Judge said that the properties each had a market value of at least half a million dollars when the promises were made and that the amount of the promise could be of assistance in revealing the deceased’s estimation of the services he received. It was a relevant consideration for the Court to weigh and carried considerable weight in this case. He then looked at “counter-remuneration” from Mr Byrne to the children: taking them on holidays and to and from school, bringing in the washing, helping with the milking, gifts of food and presents and substantial gifts of money. Mr Byrne had paid Timothy a wage in the year or so before his death ($50 net per fortnight for driving and jobs around Mr Byrne’s house). Except for the gifts of money (about $20,000), it was not feasible to put a monetary value on the services and contributions which Mr Byrne made to the Bishop family, but the Judge took them into account in deciding that it was not appropriate to make an award for the children to the full extent promised. He took into account also that the Bishop family had received from the estate already, when it appeared they were the beneficiaries of the estate, money and property valued in the range of $150,000 - $200,000.
[45] Nicholson J then considered the competing moral claims of the next of kin, including their personal links to the land and the circumstances in which those links were severed. Fred Rogers and his sister Josephine had lived and worked on both farms. Their mother, Pauline, had originally owned the Rama Road farm. Her children, the appellants, Mr Cronin and Mrs Rowlands, had lived there for six years. James, the father of the Byrne appellants, was brought up on Skeet Road and had worked there with Mr Byrne until he married and moved away in 1960. It seemed that James had been treated unfairly by their parents favouring his brother. “Because of these circumstances, each of the [next of kin] can justifiably regard the land as part of their heritage and be understandably upset that it was all transferred to Danny”.
[46] These factors led the Judge in the exercise of his direction to make the award detailed in para [2] of this judgment.
The appeal
[47] Mr Camp’s primary submission was that there was a discrepancy between the assets awarded and the services rendered. But counsel began by advancing the argument that, either because of the distant relationship between Mr Byrne and the Bishops or because of the part Mr Byrne came to play in the lives of the Bishop children, the promises to them had been based on natural love and affection and the situation was therefore not very different from the circumstances of Re Welch. He also submitted that there was not the necessary nexus between promise and reward because of Mr Byrne’s “surrogate family status” in the Bishop household and because Mrs Bishop had said that she had not looked after the deceased in expectation of repayment of any kind.
[48] Counsel did not persist with these preliminary arguments when members of the Court pointed out to him that the relationship began because Mr Byrne and the Bishops were neighbours, having nothing to do with their distant kinship. The close relationship grew out of the nature of the services. The promises themselves, coming in the latter part of the nearly 20 year period of the services, were plainly intended in part as a reward to the family for what they had done for Mr Byrne. That linkage can be seen in the very fact that Mrs Bishop told Mr Byrne that she had not had any expectation of reward. Plainly, he had indicated to her that he was intending to make testamentary provisions for that purpose. Mrs Bishop’s non-mercenary reaction is not to be held against the Bishop family. It is the promisor’s purpose, not the promisee’s motive, which establishes the necessary nexus between the promise and the services or work.
[49] The attempted comparison with Re Welch merely demonstrated the dissimilarity between the two cases. In that case the Privy Council seems to have been of the view that the claimant was fortunate to receive even the $20,000 to which this Court had reduced the award made by the High Court. The claimant’s mother had been married to Mr Welch and the claimant had developed a close relationship with his stepfather. A degree of natural love and affection is often found between a child and the person to whom one of their parents is married where the marriage is a happy one. But the claimant had spent only a few years in the same household and although he had helped the deceased in his business during holidays and in hours outside his own employment, on an unpaid basis, the claimant and his family had enjoyed reciprocal advantages. There had also been companionship but really nothing more than a normal family relationship between a stepfather and stepson who had the good fortune to get on well with each other. There are the further important differences from the present case that Mr Welch, far from being a lonely and isolated figure, was a successful businessman and that he had deliberately chosen to make a valid will leaving his estate to his eight brothers and sisters.
[50] In contrast, we accept the Judge’s view that the Bishops came to the rescue of their lonely neighbour, who may well have drunk himself to an early death in his almost derelict farmhouse if they had not brought him into their family and offered him companionship, which grew into affection and love, particularly on the part of the children. Their generosity to their neighbour was extended in a quite extraordinary way. The Judge found, as he was well entitled to do, that it saved Mr Byrne from misery and squalor and undoubtedly extended the span of his life.
[51] As Nicholson J remarked, the mental and physical value was “priceless”; it could not be calculated but had to be regarded as high. Counsel for the appellants criticised the Judge for so saying, and for saying that it was impossible to put a monetary value on the various services, but still proceeding to make an award of a farm and other assets in the order of $1.4 million, even after supposedly taking into account reciprocal benefits received by the Bishops from Mr Byrne during his lifetime. We reject that criticism. In their very nature services of this kind, particularly companionship and love, are really beyond a monetary calculation. But the Act requires the Court to assess a value. Clearly the deceased thought they had been worth a very great deal more than the Judge eventually awarded.
[52] The Judge was of course exercising a discretion which this Court would not lightly interfere with, especially when it was concerned with a statute requiring an assessment of reasonableness. As the Privy Council said in Re Welch, it is impossible to weigh in any nice scales services or work on the one hand and testamentary reward on the other. But in confirming what Nicholson J did we wish to make it clear that we are in complete agreement with his conclusions, in terms both of factual findings and quantum of award. As we indicated at the outset of our judgment, the case has some quite extraordinary features which justified an award going well beyond the normal range, even for a claim against a large estate.
[53] We reject also the submission that the award should have been lower because the greater part of the services were rendered by Mr & Mrs Bishop who brought him into their home when the children were very young or, in the case of Timothy, not yet born and adopted. Counsel for the appellants argued that the services of the children were minor and that this should be reflected in the award. Our reasons for rejecting that view appear in our earlier discussion of the proper legal approach where the promise to one family member is intended to reward another’s services.
[54] A very substantial award would have been proper even if the moral claims of the next of kin had been stronger. They did, of course, have historical ties to the properties, and they or their parents do appear to have been considerably disadvantaged by the circumstances in which Mr Byrne came to be the sole owner of the two farms. That was rectified to a minor extent only by the successful Family Protection Act claims of some of the appellants against the estates of Mr Byrne’s parents, which had no longer included the land.
[55] But all of that was well in the past when Mr Byrne died, and in the intervening period the contacts between the appellants and him had been non-existent in some cases and infrequent and brief in the others. They had never attempted to care for him – a task which, if they thought about it at all, they were content to leave to his neighbours. Even Michael Byrne, who said that he anticipated being left property by his uncle, made only infrequent attempts to make contact with him. It should be added that, at an earlier stage of proceedings, the testamentary promises claims of the Byrne appellants to the Skeet Road farm, based on services to Mr Byrne by his brother James prior to the latter’s death in 1976 and services by his widow until 1977, had been rejected because the services “were at best minimal or non-existent”.
[56] The Judge weighed the competing claims and decided that Mr Byrne’s promise of both farms could not properly be given full effect. He has adequately, in our view, recognised the claims of the next of kin and made allowance for the reciprocal benefits received by the Bishop family by leaving the Rama Road farm in the estate.
Result
[57] The appeal is dismissed. The appellants must pay the costs of the respondents on this appeal in the sum of $5,000, together with reasonable disbursements, including travel and accommodation expenses of counsel, to be fixed if necessary by the Registrar.
Solicitors:
Thomas Dewar Sziranyi Druce, Lower Hutt
for appellants
Reeves Middleton Young, New Plymouth for respondents
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URL: http://www.nzlii.org/nz/cases/NZCA/2001/309.html