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Court of Appeal of New Zealand |
Last Updated: 19 May 2017
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellant |
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AND
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First Respondent |
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AND
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Second Respondent |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Simon France
J)
Introduction
[1] Mr John Mathieson died on 1 February 2014, aged 72. During his lifetime he had established the J H Mathieson Trust (the Trust). The Trust had one principal asset, a rural property on which Mr Mathieson had lived since 2005 until his death. The Trust had two named beneficiaries — Mr Mathieson and the second respondent the Neurological Foundation of New Zealand (the Foundation). Accordingly, consequent upon Mr Mathieson’s death, the Foundation receives the Trust’s assets valued at approximately $453,000. Further, under the terms of Mr Mathieson’s will his personal estate, separately worth around $470,000, was also left to the Foundation.
[2] The first respondent Mr Stewart is the surviving trustee of the Trust and executor and trustee of the will. During Mr Mathieson’s lifetime, Mr Stewart was his lawyer.
[3] Mr Mathieson was an only child, never married and had no children. However, he was in a relationship for 22 years with a Ms Blumenthal. Ms Blumenthal died in 2004.
[4] Ms Blumenthal had three children, including the appellant Mr Paul Blumenthal, from a previous relationship. Mr Blumenthal was in his early twenties when his mother and Mr Mathieson became partners. Over the next 30 years until Mr Mathieson’s death Mr Blumenthal developed a close relationship with Mr Mathieson, witnesses describing it as like that of father and son.
[5] Mr Blumenthal brought several claims in the High Court in relation to Mr Mathieson’s personal estate and the Trust property.[1] First concerning the estate, Mr Blumenthal brought a claim under the Family Protection Act 1955. That was unsuccessful because Mr Blumenthal was unable to bring himself within the circumstances under which a stepchild may make a claim. That matter is not pursued.
[6] Next, Mr Blumenthal made a claim for the whole of Mr Mathieson’s personal estate under the Law Reform (Testamentary Promises) Act 1949 (the Act). Mr Blumenthal said that Mr Mathieson had made unfulfilled promises to leave him the Trust’s rural property as his “inheritance”. Finally, Mr Blumenthal made a claim directly against the Trust, alleging a constructive trust in relation to the rural property. He claimed he had made uncompensated contributions to an extent that merited recognition by way of an interest in the property. Mr Blumenthal was unsuccessful in both these claims, and appeals.[2]
Appeal issues
[7] Before analysing the facts it will be helpful to expand on the matters raised by the appeal.
[8] A testamentary promises claim is brought under s 3 of the Act. For the purposes of this appeal the relevant requirements are:
- (a) an express or implied promise by Mr Mathieson to make testamentary provision for Mr Blumenthal;
- (b) services by Mr Blumenthal during Mr Mathieson’s lifetime;
- (c) a nexus between these two requirements in the sense that the promise by Mr Mathieson must be at least in part motivated by the services done by Mr Blumenthal; and
- (d) the promised provision has not been made.
[9] Mr Blumenthal claimed that over many years Mr Mathieson had made references to Mr Blumenthal’s “inheritance”, initially in relation to his estate but more latterly the Trust’s rural property. In terms of services performed, Mr Blumenthal relied on the moral and emotional support he had provided Mr Mathieson over the years, including the relationship that had developed between his own children and Mr Mathieson; the various contributions he had made to the rural property; and the efforts he made over a 10 week period to assist Mr Mathieson when he was hospitalised shortly before his death.
[10] In the High Court, Ellis J accepted some promises had been made but rejected that Mr Blumenthal had performed “services” as that term is used in the Act. She also held there was no nexus between the promise and the alleged services. Any promise made by Mr Mathieson was solely made out of love and affection. The matters advanced on appeal first concern her Honour’s approach to “services”. The case law establishes that within a family setting such as this, to qualify as services the conduct in question must be something more than what can be normally expected to occur in such a context.[3] Mr Morten submits Ellis J set the bar too high for what can be normally expected.
[11] Next, her Honour found that any services done by Mr Blumenthal were at least matched by the benefits he had already received. This exercise is referred to as “net off”.[4] Unless there is an imbalance, the claim will fail. Mr Blumenthal submits that the Judge’s assessment was incorrect. Finally, it is submitted that Ellis J approached the nexus question incorrectly by looking at Mr Blumenthal’s motivation for performing the services, rather than Mr Mathieson’s motivation for making the promise.
[12] Turning to the constructive trust claim, what needs to be established is:[5]
- (a) Mr Blumenthal must show he has made contributions, direct or indirect, to the property in question;
- (b) Mr Blumenthal must have a reasonable expectation, sourced in those contributions, of an interest in the property; and
- (c) it must be reasonable to expect the legal owner, here the trustees of the Trust, to yield an interest in the property to Mr Blumenthal. The trustees were Mr Mathieson and Mr Stewart.
[13] Mr Blumenthal identified various contributions such as spraying weeds and maintaining the water pump to establish the first element. He then submitted he had an expectation of an interest because of the repeated references by Mr Mathieson to the property being his inheritance. It was because of these statements by Mr Mathieson, and Mr Blumenthal’s efforts in relation to the property, that it was submitted his expectation was a reasonable one. Finally, Mr Blumenthal contended it was reasonable for the trustees to yield an interest because Mr Mathieson was in total control of the trust asset and the other trustee, Mr Stewart, had abdicated his trustee responsibilities such as to mean he must now be bound by Mr Mathieson’s unilateral actions.
[14] Justice Ellis rejected each aspect. Her Honour considered any contributions made by Mr Blumenthal had already been offset by benefits he received in the use of the property. The Judge accepted Mr Blumenthal had a reasonable expectation of an interest in the property based on the inheritance statements, but held this expectation was due to the love and affection that existed between the men, and did not flow from any contribution made by Mr Blumenthal. Finally, the Judge held that the other trustee, Mr Stewart, had not abdicated his responsibilities. He had not been a party to any of the events between Mr Blumenthal and Mr Mathieson and it would not be reasonable to require him to yield an interest in the trust property to Mr Blumenthal.
[15] On appeal against the rejection of the constructive trust claim, Mr Blumenthal again submits that Ellis J erred in her evaluations of the facts and of Mr Blumenthal’s contributions, and also in her conclusion regarding Mr Stewart. One legal error is alleged, namely that it was incorrect for Ellis J to require that Mr Blumenthal’s contributions must “manifestly exceed” the benefits he had already received back. It is submitted all there needs to be is uncompensated contributions that are more than minor.
Facts
The relationship between the two men
[16] Mr Blumenthal knew Mr Mathieson before the latter entered into a relationship with Mr Blumenthal’s mother. They had a mutual interest in cars and Mr Mathieson was a panel beater. It was about three years after the two men had met that Mr Mathieson and Ms Blumenthal became partners. At that point Mr Blumenthal was around 22 years of age.
[17] It is not disputed that Mr Blumenthal and Mr Mathieson became close throughout the course of Mr Mathieson’s relationship with Ms Blumenthal. Mr Mathieson had moved into Ms Blumenthal’s home and so when Mr Blumenthal visited, he was there. When Mr Blumenthal married and had children, the whole family would visit and at times the children would stay at the house. They referred to Mr Mathieson as their grandfather.
[18] During this period Mr Blumenthal separated from his first wife. His evidence is that Mr Mathieson provided much moral support at this time both to him and the children. The children would stay with Mr Mathieson and they came to rely on him for moral support in difficult situations. The overall picture, it seems, was of a typical family, sharing Christmas, birthdays and other family gatherings, and providing support to the older generation in times of need.
[19] Ms Blumenthal died in 2004. The evidence is that the bond between Mr Blumenthal and Mr Mathieson remained strong afterwards. Indeed, Mr Blumenthal felt they became closer. In 2005, a year or so after his mother’s death, Mr Blumenthal remarried. Mr Mathieson was his best man. The marriage did not last and it is clear it was a difficult time for Mr Blumenthal. He purchased his wife’s share of the matrimonial home, but then struggled to service the mortgage. Mr Mathieson offered financial assistance,[6] as well as again providing significant moral support.
[20] Mr Blumenthal notes that after both separations Mr Mathieson offered rentfree accommodation, and allowed Mr Blumenthal to use his property to store items such as his ute, his furniture and all his work gear.
[21] One matter raised by Mr Blumenthal as an example of support concerns Mr Mathieson’s work situation. Around the time Mr Mathieson and Ms Blumenthal became partners, Mr Mathieson was unemployed. Mr Blumenthal and his mother ran a pest control business which Ms Blumenthal had taken over following her separation from her husband. The business offered Mr Mathieson employment, which he accepted. Eventually, the business was sold to a bigger enterprise which then continued to employ both Mr Blumenthal and Mr Mathieson.[7] Again, Mr Blumenthal attributes Mr Mathieson’s continuing employment to Mr Blumenthal’s endeavours on his behalf. However, we note that whatever the merit of this claim of assisting Mr Mathieson to obtain work, Mr Mathieson remained in unbroken employment for nearly 30 years until his death. It is a reasonable inference that Mr Mathieson’s own efforts were largely responsible for that. The fact that Mr Blumenthal (and presumably his mother as coowner) may have initiated that process is of little moment, and in terms of this present exercise does not merit separate recognition.
[22] It is convenient to conclude the discussion of the relationship between the two men by reference to a passage from Mr Blumenthal’s evidence:
In every way, John was integrated into our family. He became an integral part of my family and my children and he regarded me as his son. Equally, I saw him as my stepfather, with whom I had a close and meaningful relationship. I would do anything for him, as he had provided such support for me, whenever I had needed it.
Contributions to the rural property
[23] Mr Mathieson lived in Ms Blumenthal’s house for about a year following her death.[8] When the house was to be sold, the Trust consolidated its assets and bought the rural property that became its major asset. The trustees then handed over possession of the rural property to Mr Mathieson. There were two accommodation options on the site. Mr Mathieson lived in one, and rented out the other. He kept the benefit of the rental income.
[24] Evidence of the dealings between Mr Blumenthal and Mr Mathieson in relation to this property is sourced solely in Mr Blumenthal. Mr Stewart as the other trustee did not involve himself in the property at all during Mr Mathieson’s lifetime.
[25] Mr Blumenthal advises that when the property was purchased, he offered Mr Mathieson a contribution of $50,000 which was not taken up. He then helped Mr Mathieson move in. During the course of Mr Mathieson’s occupation of the property (from July 2005 to February 2014) Mr Blumenthal notes the various things he did. The evidence is vague as to regularity or timing, but matters that are listed include:
- (a) spraying weeds;[9]
- (b) helping with heavy lifting;
- (c) helping with firewood;
- (d) maintaining the water pump;
- (e) maintaining and checking electric fences;
- (f) keeping the property pest free;
- (g) tidying up the grounds around the tenanted property; and
- (h) looking after it while Mr Mathieson was away.
[26] Particularly towards the latter part of the period there were undoubtedly benefits back to Mr Blumenthal. He had started his own business in September 2013, and based the business on the property. He used sheds to store his chemicals, something he seems to have done for “well over two years”. This storage activity appears to relate in part to chemicals belonging to the men’s mutual employer, since Mr Blumenthal’s personal business had only existed for a few months prior to Mr Mathieson’s death.[10] As noted, there had been use of the premises for longer than this. Mr Blumenthal had, for example, stored various items there following his marriage separations.
[27] Another matter to note concerning the property is that Mr Blumenthal fattened cattle there. It appears there were a total of four cattle. This grazing helped keep the grass down, and the men shared the meat when the cattle were killed.
Assistance during Mr Mathieson’s hospitalisation
[28] In midNovember 2013 Mr Mathieson snapped a tendon in his leg and was hospitalised. While there he had an accident that caused the same injury to the other leg. Obviously he was quite incapacitated for a time. For a two month period he was either in hospital or a rest home. He returned home on 21 January 2014, but suffered a fatal heart attack 11 days later on 1 February 2014.
[29] During this period of hospitalisation, Mr Blumenthal says he visited daily and provided Mr Mathieson with the necessaries such as toiletries, food and other essentials. He did not seek reimbursement. He also kept an eye on the property. As he himself describes it — “all the things a son would do”. In his evidence he described himself as a hands-on caregiver during this period, but plainly what he did in that regard was in addition to the care being provided at the hospital and rest home.
[30] Following Mr Mathieson’s death, Mr Blumenthal organised the funeral and undertook the task of notifying friends and family of Mr Mathieson’s passing. Mr Blumenthal and two of his children spoke at the funeral.
Promises
[31] We conclude the review of the facts by addressing the question of what promises were made. By way of background context, it appeared from correspondence written by Mr Stewart that Mr Mathieson and Ms Blumenthal had agreed they would not leave anything to each other. This proposition was then reinforced by the actual content of the wills, neither of which left anything to the other.
[32] Mr Stewart, as Mr Mathieson’s lawyer, carried out two regular activities. He met with Mr Mathieson each year to arrange for the annual forgiving of the Trust debt. Secondly, every three years his office system generated a letter to clients who had wills lodged with the firm. The letter inquired of the testator whether any changes were sought, or should be made. Mr Stewart said that neither in response to the letters, nor at his annual meeting, did Mr Mathieson ever indicate a desire to change his will. Nor did he ever raise the topic of leaving something to Mr Blumenthal or Mr Blumenthal’s children.
[33] In contrast to this, Mr Blumenthal testified that Mr Mathieson would often refer to Mr Blumenthal receiving an inheritance. It was said that at around the time of Ms Blumenthal’s death, Mr Mathieson talked of leaving his estate “to the grandkids”. Mr Blumenthal’s daughter said she also recalled this.
[34] The other identified instances of a promise being made were again said to be occasions where Mr Mathieson would refer to Mr Blumenthal’s “inheritance” in relation to the trust property. Specifically it was also said that while at hospital, in a jovial context, Mr Mathieson had said to Mr Blumenthal that he would not want “someone else getting your inheritance”.
[35] Justice Ellis rejected the idea of any testamentary promise prior to Ms Blumenthal’s death. Her Honour however concluded, “on balance”, that general references to inheritance were on occasion subsequently made, at least in the context of the rural property.[11]
Decision
[36] At the heart of the appeal is the claim that Ellis J has undervalued Mr Blumenthal’s contributions and overvalued the benefits he has received. We have not been persuaded this is correct, and along with the Judge see the imbalance, if any, as having favoured Mr Blumenthal.
[37] Looking first at the issue of moral and emotional support, it is clear that what existed was a relatively normal family unit, albeit one parent was a de facto stepfather. There were family events, and support was given in times of need. For most of the first 20 years, the context for any contact was that Mr Mathieson was living with the mother of the Blumenthal children at her house. There is no doubt Mr Mathieson was accepted, and himself acted, as her partner and like a father/grandfather.
[38] What is also clear, however, is that the greater need throughout this period was that of Mr Blumenthal who it seems went through, for him, two difficult divorces — particularly the latter. Obviously Mr Mathieson needed and received support when Ms Blumenthal died, but the greater balance of the support seemed to us, as it did to Ellis J, to flow to Mr Blumenthal.
[39] The second alleged services in terms of the testamentary promises claim are Mr Blumenthal’s actions in relation to the rural property. These are also relied on as the relevant contributions for the constructive trust claim. They have been listed earlier.[12] The frequency with which these things happened is much less clear and other witnesses speak of Mr Mathieson being fit and able to look after the property up until his injuries in November 2013.
[40] In our view these actions fall well short of establishing contributions meriting recognition, or amounting to services above what would normally occur in a family unit. Most of the actions are relatively mundane, and the evidence does not suggest there was a frequency or endeavour involved in them that would elevate them to something more. In Vervoort v Forrest this Court noted on the facts there that the actions of the plaintiff were cosmetic and did not add to the value of the property.[13] The same observation could largely be made here.
[41] Finally, in relation to services, we address the assistance given during Mr Mathieson’s incapacitation. This was significant and reflects the type of effort a child would make for a parent in those circumstances. We consider Mr Blumenthal’s submissions tended to overstate the endeavour, but in responding to that submission we do not wish to diminish what was a genuine measure of assistance on a daily basis. To put it in context, however, for almost all of the time Mr Mathieson was incapacitated he was being professionally cared for either in hospital or a rest home facility. The period was around 10 weeks, not four months as claimed. We do accept, however, Mr Blumenthal had to go out of his way to visit and there was considerable endeavour involved in this.
[42] In our view these final contributions could be seen as qualifying services, but given their nature and short duration, they would be unlikely to merit anything other than minimal recognition. In the particular case, we do not see them as off-setting the overall benefits received by Mr Blumenthal.
[43] In relation to the benefits received by Mr Blumenthal, we have already commented on the moral support aspect. As regards the property contributions, we do not accept Mr Morten’s proposition that Ellis J overstated them. The evidence shows Mr Blumenthal was able to use the property on numerous occasions for storage. Latterly he even ran a business from it, and he grazed cattle there which were being fattened for sale. His own evidence illustrates the value he was receiving:
I am now experiencing quite a substantial amount of additional and unexpected expense in operating my business as I have had to place a lot of the business equipment into storage. I am being charged for that storage. The moving of all the business to replacement premises has been very destructive to the business operation. Whereas in the past, the business was able to be stored and located at the [rural] property, I now have business items and property either in storage or scattered around the local area.
[44] All of this amounts to considerable advantages to Mr Blumenthal, especially when compared to the mundane and seemingly somewhat occasional tasks on the property which he relies on.
[45] These factual conclusions, which largely mirror those of the High Court, undermine the appeal to the point it cannot succeed. However, for completeness’ sake it is appropriate to apply these conclusions to the points raised in relation to each claim.
Law Reform (Testamentary Promises) Act claim
[46] The first issue raised in relation to the testamentary promises claim is whether Ellis J set the bar too high as to what is normal for a family in this circumstance. The need to consider what is normal flows from the conclusion reached in previous cases that the normal incidents of family life cannot be regarded as qualifying services for the purposes of s 3 of the Act. The current law is summarised in Samuels v Atkinson:[14]
[52] More recently, in Re Fagan [1999] NZFLR 222 (HC) Baragwanath J considered that (at 236):
... the apparent difference may be resolved in conventional cases by first assessing the norm, as was done in Re Welch; and then deciding whether the benefits conferred significantly exceed that norm, in which case, as other authorities decide, an award — and in a strong case a substantial award — may be made taking into account competing claims, even though neither deceased nor plaintiff viewed the matter in commercial terms.
[53] To put this another way, it has been regarded as appropriate to endeavour to identify “something extra” which takes the facts of the particular case beyond the relatively narrow confines contemplated by the Privy Council in Re Welch. This approach to testamentary promises claims, if correctly followed, has the added benefit of making the quantification of claims more straightforward.
[47] There may be an occasion in the future to consider whether what is “the norm” is something that can be better defined. It is possible it might then anyway be concluded that the task is just one of those matters that requires judicial evaluation having regard both to common experience and the circumstances of the particular family setting. However, given our view of the facts, it is not necessary to analyse the issue further.
[48] Other than arguably during the more intense period when Mr Mathieson was hospitalised, for the reasons already discussed, along with Ellis J we discern nothing in Mr Blumenthal’s conduct that could be considered to consist of “something extra”. This conclusion applies to both the moral support component and the contributions to the rural property aspect. As regards moral support, we record that orally Mr Morten sought to draw parallels with those cases where the claimants had provided what could be called a surrogate family life to someone otherwise alone.[15] This is an invalid comparison. Mr Mathieson was part of the family and had been so since he entered into the relationship with Ms Blumenthal. The whole emphasis of Mr Blumenthal’s evidence was to establish that point.
[49] The second appeal point concerned the issue of whether the benefits received by Mr Blumenthal were overstated, and we do not comment further on that.
[50] The final issue concerns the appropriate focus of the nexus inquiry. The law is well settled here that what is in issue is whether the testator, when making the promise, was either responding at least in part to the services that had been performed, or was making a promise in return for future services. Where it is a promise relating to past services, a plaintiff is not to be disentitled because the services were at the time motivated by love and affection.[16]
[51] In the present case we accept there are aspects of the judgment under appeal that do focus on Mr Blumenthal’s motivations, but other parts focus on what was motivating Mr Mathieson. Given our findings, closer analysis is unnecessary. We do record, however, we do not accept Mr Morten’s characterisation of Mr Mathieson’s motives when making the alleged hospital bed promise. Mr Morten urged the Court to view the promise as an assessment by Mr Mathieson near the end of his life as to what would be the proper thing to do. We note first, contrary to the submissions, Ellis J did not specifically find this particular promise happened. Secondly, there is nothing to suggest Mr Mathieson, in hospital for leg injuries, had any sort of deathbed mentality. It cannot accordingly be inferred that when making this promise (if he did), he was reflecting back and recognising all Mr Blumenthal had done. Further, the lack of any out of the ordinary quality to Mr Blumenthal’s actions makes it less likely these actions were Mr Mathieson’s motivation. We agree a nexus is not established, and would not be a valid inference.
[52] Justice Ellis observed, and we agree, that the primary focus of the plaintiff’s evidence was to support the Family Protection Act claim. This required emphasising the close family unit, and the strength of the ties. The corollary is that these same ties are far more likely than any past services performed to be the reason why Mr Mathieson would talk of inheritance. For all these reasons we reject the appeal concerning the Law Reform (Testamentary Promises) Act claim.
Constructive trust claim
[53] We turn to the constructive trust claim. The first appeal ground is that Ellis J erred in describing the requirement on Mr Blumenthal as being to show his contributions manifestly exceed the benefits he has received. However, the proposition that the contributions must “manifestly exceed” the benefits already received is taken directly from the judgment of Hardie Boys J in Lankow v Rose.[17] Further, as Ms Morris identified, it is a standard that has been used by this Court in several recent judgments — Hawke’s Bay Trustee Co Ltd v Judd,[18] Avison v McFarlane[19] and Murrell v Hamilton.[20] We note that in the latter case, in the same paragraph as the “manifestly exceeds” test appears, the Court alternatively describes the requirement as being that the contributions “well exceeded” the benefits.[21] Little turns on the exact words, with both reflecting the role of the test which is to establish there exists a situation of sufficient disproportion to merit Equity’s intervention.
[54] The second appeal ground challenges the Judge’s evaluation of the contributions. We have already commented sufficiently on that.
[55] The final aspect of the constructive trust appeal concerned the issue of whether Mr Stewart had abdicated his functions as trustee. This topic arises because the property in question is itself the subject of an express trust. As was discussed in Vervoort, difficulties can arise in these circumstances for a claimant because of the rules that trustee functions cannot be delegated and trustees must act unanimously. It was not suggested here that Mr Stewart was a knowing party to creating any expectation on Mr Blumenthal’s part to an interest in the property. Accordingly it could be argued that it would not be reasonable to require him as the legal owner to yield an interest to Mr Blumenthal.
[56] The Court in Vervoort overcame this difficulty by ruling the normal trustee principles “...must bend to the practical realities when one trustee is in absolute control of all trust activities and the other trustees have effectively abdicated their responsibilities”.[22]
[57] Mr Morten contends that such a situation applied here. Mr Mathieson was in absolute control and Mr Stewart had abdicated his responsibilities. Justice Ellis disagreed on the facts. Given our other conclusions on the other matters, it is unnecessary to explore the topic further but again we record we are not persuaded the Judge erred.
Conclusion
[58] We agree with the Judge’s factual assessments. There does not exist the necessary level of uncompensated effort, be it services under the Law Reform (Testamentary Promises) Act claim or contributions under the constructive trust claim, necessary to support the claims made.
[59] The appeal is dismissed. The appellant must pay the second respondent costs for a standard appeal on a band A basis and usual disbursements. Although we have not had to consider Mr Stewart’s position in any depth, we accept that it was necessary for Mr Morrison to prepare and appear. We adopt his recommendation that the first respondent be awarded costs on the same basis but limited to one day’s preparation. Therefore the appellant must pay the first respondent costs for a standard appeal on a band A basis and usual disbursements, but limited as to preparation to one day.
Solicitors:
McIntosh & Signal,
Feilding for Appellant
Rainey Collins, Wellington for First
Respondent
Morris Legal, Auckland for Second Respondent
[1] Blumenthal v Stewart [2015] NZHC 3187, [2016] NZFLR 647.
[2] Blumenthal v Stewart, above n 1. Accompanying the constructive trust claim was a claim for unjust enrichment. That is not pursued.
[3] Tucker v Guardian Trust and Executors Co of New Zealand Ltd [1961] NZLR 773 (SC) at 776; cited in Blumenthal, above n 1, at [72].
[4] Samuels v Atkinson [2009] NZCA 556, [2010] NZFLR 980 at [78].
[5] Lankow v Rose [1995] 1 NZLR 277 (CA) at 282.
[6] The offer was not ultimately accepted.
[7] The evidence suggests the business was sold to an individual, Mr Denny Allen, who then onsold it to the larger operation.
[8] The house was left to Mr Blumenthal’s sisters and so this was not a service performed by Mr Blumenthal.
[9] Evidence from Mr Stewart countered this, detailing the expenditure required on such matters following Mr Mathieson’s death.
[10] In another part of the evidence, Mr Blumenthal refers to storing all his work gear at the property following his separation from his second wife. It appears that occurred sometime in 2011, and his quote about more than two years may well be pointing to these separate events as when the chemical storage commenced.
[11] Blumenthal v Stewart, above n 1, at [70] and [92].
[13] Vervoort v Forrest [2016] NZCA 375, [2016] 3 NZLR 807 at [75].
[14] Samuels v Atkinson, above n 4; citing Re Welch [1990] 3 NZLR 1 (PC).
[15] Samuels v Atkinson, above n 4, is such a case. See also Re the Estate of JIM, AES v New Zealand Public Trust [2010] NZFLR 1085 (FC); and generally the discussion in Bill Patterson Law of Family Protection and Testamentary Promises (4th ed, LexisNexis, Wellington, 2013) at [13.10].
[16] Jones v Public Trustee [1962] NZLR 363 (CA) at 374.
[17] Lankow v Rose, above n 5, at 282.
[18] Hawke’s Bay Trustee Co Ltd v Judd [2016] NZCA 397, (2016) 4 NZTR 26-019 at [19].
[19] Avison v McFarlane [2015] NZCA 409, (2015) 30 FRNZ 480 at [33].
[20] Murrell v Hamilton [2014] NZCA 377, (2014) 3 NZTR 24-012 at [37].
[21] At [37].
[22] Vervoort v Forrest, above n 13 at [62].
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