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Le Couteur v Norris [2018] NZCA 572 (11 December 2018)

Last Updated: 4 February 2019

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA
CA331/2018
[2018] NZCA 572



BETWEEN

JULIET LE COUTEUR
Appellant


AND

RICHARD NORMAN TUDWAY NORRIS AND RICHARD GEORGE WILSON AS EXECUTORS AND TRUSTEES OF THE ESTATE OF SIDNEY HOWARD LE COUTEUR
Respondents


AND

HOWARD FRANCIS JOHN LE COUTEUR AND STEPHEN LE COUTEUR
Interested Parties

Hearing:

9 October 2018

Court:

Cooper, Venning and Collins JJ

Counsel:

A J Steele and K R Narayanan for Appellant
G A Cooper and A L Worrill for Interested Parties
No appearance for Respondents

Judgment:

11 December 2018 at 2.30 pm


JUDGMENT OF THE COURT

  1. The appeal is allowed.
  2. The judgment of the High Court is set aside.
  1. The appellant is awarded $590,000 from her mother’s estate under s 3 of the Law Reform (Testamentary Promises) Act 1949.
  1. The interested parties must pay the appellant costs for a standard appeal on a band A basis and usual disbursements.
  2. Costs in the High Court are to be determined in that Court.

____________________________________________________________________


REASONS OF THE COURT

(Given by Venning J)

Introduction

[1] In a judgment delivered on 23 May 2018 Powell J declined Ms Juliet Le Couteur’s claim for relief under the Law Reform (Testamentary Promises) Act 1949 (the Act) against the estate of her late mother Sidney Le Couteur.[1] Juliet appeals against that decision.

Background

[2] Sidney Le Couteur and her husband Philip had three children, Juliet and her two brothers, Howard and Stephen. Sidney lived in Auckland, mainly on the North Shore. Howard spent his adult life in Christchurch. Stephen is now living in Auckland but between 2005 and 2014 lived in England.
[3] Sidney’s last will was made on 27 March 1991. In it she left everything to her husband Philip if he survived her but in the event he did not she appointed the respondents as executors and trustees and gave Juliet her home at 50 Pupuke Road, Takapuna, together with chattels (excluding any motor car). The rest of the estate was to be divided equally between Howard, Stephen and Juliet. Philip died in 1995 when Sidney was 72 years old. As his will was in similar terms to Sidney’s will the property at 50 Pupuke Road, Takapuna was transferred into Sidney’s sole name by survivorship.
[4] Following her father’s death, Juliet assumed a more active role in the care of her mother. Before his death Philip had asked Juliet and her husband, Tony Garnier, to look after Sidney. In June 1997 Juliet and Tony, together with Sidney, purchased a property at 12A Manawa Road, Remuera as to a half-share each with the intention Sidney would live with Juliet and her family. In October 1997 Sidney sold 50 Pupuke Road and moved into 12A Manawa Road.
[5] Subsequently, in June 1999 Sidney decided to move back to the North Shore and purchased a property at 10G Brett Avenue, Takapuna. Sidney moved to Brett Avenue in April 2000. The property at Manawa Road, Remuera was sold in June 2000 and Juliet and Tony bought a property of their own at St Vincent Avenue.
[6] After moving to Brett Avenue, Sidney discussed with Juliet leaving that property to her. On a copy of Sidney’s 1991 will the reference to Pupuke Road was crossed out and Brett Avenue substituted. Sidney signed the amended document. She also prepared a handwritten note on 24 August 2002 purporting to bequeath the Brett Avenue property to Juliet.
[7] As Sidney became more dependent on Juliet, she agreed to move back to the city to live with or at least closer to Juliet and Tony. In July 2004 Juliet and Tony, together with Sidney, agreed to purchase three adjoining units at Gladstone Road and Taurarua Terrace, Parnell (collectively the Parnell property). The purchase price was $1,800,000. Sidney contributed $800,000 towards the purchase price. Juliet and Tony sold their home at St Vincent Avenue to fund their contribution to the purchase.
[8] In January 2006 Sidney sold the Brett Avenue property for $750,000.
[9] Sidney lived in 17B Taurarua Terrace, Parnell for two or so years but her health deteriorated and from September 2008 she went into rest home care until her death in 2016.

The claim and response

[10] Juliet claims that she provided services and work for Sidney during her lifetime. She says Sidney made express and implied promises to reward her for the services and work by leaving her the residence Sidney was living in from time to time, latterly the property at 17B Taurarua Terrace, Parnell. Juliet sought an order vesting the house at 17B Taurarua Terrace, Parnell in her name, or alternatively, an order awarding her such amount as the Court considered reasonable in the circumstances.
[11] Howard and Stephen opposed the claim. While acknowledging that Juliet was a loving and caring daughter who provided support to their mother, they disputed that the services that Juliet relied on were more than would be provided by any loving daughter to her mother. They argued the services did not amount to qualifying services for the purposes of the Act. Further, they denied that Sidney had made any express or implied promise as alleged by Juliet.

High Court judgment

[12] Powell J identified the issues to be determined as:[2]
[13] In rejecting Juliet’s claim the Judge concluded that neither the bequest of 50 Pupuke Road contained in the 1991 will nor the later informal amendment to that will, or the handwritten note from August 2002 referring to the Brett Avenue property constituted any form of a general promise that Juliet would be entitled to receive whatever property Sidney owned at the date of her death.[3] In the Judge’s view the note and the informal changes to the 1991 will specifically related to Brett Avenue, and any gift or direction in relation to that property adeemed in the same way as the bequest of Pupuke Road did once the properties were sold.[4]
[14] Next, the Judge considered there was a lack of clarity about what Sidney thought she was getting in terms of the transaction involving the Parnell property. The exact nature of the transaction and the lack of any detailed evidence to support any sort of promise made by Sidney generally, let alone a promise to reward Juliet for work or services, meant he was not satisfied Sidney had made a qualifying promise to Juliet in relation to that property.[5]
[15] While the Judge accepted that Juliet had provided support to Sidney, he was not satisfied the ongoing care and support provided by Juliet was, in the circumstances of her relationship with Sidney, work or services for the purposes of the Act, still less that there was any sufficient nexus with any promise to reward.[6]
[16] As a result, the Judge considered it was not necessary to make any findings regarding Sidney’s capacity at the relevant time or as to the nature of work or services provided by Juliet.[7] Nor was it necessary to determine if the promise of a house would have been reasonable, or whether the relief sought by Juliet could have been granted by the Court.

Issues

[17] The appeal raises the following issues:

Was there a promise for the purposes of the Act?

[18] Section 3 of the Act provides:
  1. 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, civil union partner, 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 ...

[19] “Promise” is defined in the Act as:

2 Interpretation

In this Act, unless the context otherwise requires,—

...

promise includes any statement or representation of fact or intention.

[20] In the early case of Nealon v Public Trustee this Court emphasised that for the purposes of the Act the word “promise” was not used in the sense of a technical meaning of an accepted offer amounting to a valid contract.[8] It was not restricted in any legal sense. The promise need not amount to a contractual undertaking.
[21] In Jones v Public Trustee this Court confirmed that “promise” includes unilateral declarations by a deceased of his or her intention to reward others for services or work performed by them by the making of a testamentary provision in their favour.[9] It does not matter whether the promise is made before or after services have been performed.[10]
[22] Finally in Byrne v Bishop this Court again emphasised the broad concept of promise in this context:[11]

[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 (s 3(2)).

[23] Juliet’s evidence was that while Sidney was living at Brett Avenue she discussed the need to change her will if Juliet was to inherit the property. Juliet said:

[Sidney] clearly thought that the handwritten change of the address on the Will, together with her signature would be sufficient. She asked me if I would like to live at Brett Avenue. I told her I could imagine myself happily living there at some stage.

[24] Further, Juliet said that when Sidney agreed to the purchase of the Parnell property she had told Juliet that she was going to inherit the property anyway and so had no qualms about the amount she was putting towards the purchase.
[25] Juliet was cross-examined on the issue of whether Sidney had made a promise or not. She did not resile from her evidence-in-chief but rather confirmed it:
  1. ... You did not know that anything had been promised to you over and above your brothers?
  2. Well I’d had the conversation with my mother that she intended to leave the property at Brett Avenue to me.

And later:

  1. My mother said to me one day you know she wanted to leave her property to me and you know she would, that’s what her intention was and would I like to live at Brett Avenue.
[26] Tony confirmed in his evidence that when the purchase of the Parnell property was discussed Sidney said she did not mind putting forward slightly more money as she intended Juliet to inherit her property. He understood from what Sidney told him that it was her intention to leave her unit at Taurarua Terrace to Juliet.
[27] The evidence of the 1991 will, which left Pupuke Road to Juliet, and the handwritten and signed amendment to that will substituting Brett Avenue for Pupuke Road support a finding Sidney intended to leave Juliet the home she was living in at her death. Even accepting that the original concern in 1991 may have been to provide security for Juliet in the event her marriage to Tony failed, (as suggested by her brothers) by 2002, 11 years later, the same concerns could not apply. By then, Juliet had also provided significant further services and support to her mother after her father’s death in 1995 and Sidney had discussed leaving Brett Avenue to Juliet with her.
[28] Sidney’s handwritten note of 24 August 2002 is particularly relevant. It says:

I Sidney Howard Le Couteur bequeath my home at

10G Brett Avenue

Takapuna

Shore City Auckland

to my daughter Juliet Le Couteur in appreciation for all her loving kindness to me always.

On this day 24th August 2002

Even though the note was not discovered until after Sidney’s death both it and the amendment to the will are consistent with, and supportive of, Juliet’s oral evidence of the promises Sidney made to her.

[29] In Powell v Public Trustee this Court noted that a significant feature of the case was an attempt by the deceased to leave his whole estate to the claimant by signing a copy of an earlier will, amended so as to change the sole beneficiary from a Mr Menzies to Mrs Powell.[12] The amended copy was signed, probably with testamentary intent but the document was not valid as a will because it was not witnessed. Notwithstanding that defect, the Court relied on it as evidence of a testamentary promise. Similarly, in the present case, although the copy of the 1991 will as amended and signed by Sidney was ineffective as a testamentary disposition, it is evidence of her intent to benefit Juliet by leaving her home to Juliet. At the time Brett Avenue was Sidney’s home. Later the Taurarua Terrace property became her home.
[30] The Judge did not reject Juliet’s evidence as to the promise but rather found there was no promise for the purposes of the Act because there was no promise to leave the specific property Sidney was living in at the date of death to Juliet. The bequest of Pupuke Road referred to in the will was adeemed because Sidney no longer owned that property as at the date of her death. Similarly, Sidney no longer owned Brett Avenue as at her death.
[31] We consider that in coming to the conclusion there was no promise the Judge applied too strict an approach to the remedial provisions of the Act. The fact the bequest in relation to 50 Pupuke Road in the will adeemed and Brett Avenue was no longer owned by Sidney at her death does not negate the promise made to Juliet, but rather supports a conclusion that Sidney failed to make the testamentary provision she promised to make for Juliet. The evidence confirms that Sidney made more than one representation she would leave her home to Juliet. The promise was repeated in a variety of ways in relation to each of the properties she lived in, including the last property at 17B Taurarua Terrace. Juliet’s evidence that Sidney had told her at the time the Parnell properties were purchased that she would inherit the property anyway, was not seriously challenged. Juliet’s evidence confirms that on more than one occasion, both orally and in writing, Sidney represented that she would leave what was at the time her home to Juliet.
[32] In context, and considered overall, the evidence confirms that Sidney’s intention in 1991, and 2002 and later, when she contributed to the purchase of the Parnell property, was for the property that she was living in at the time to be left to Juliet. There was no suggestion that there was any particular significance about the particular property itself.
[33] We are satisfied that the evidence confirms that Sidney made a promise to leave Juliet her home on her death.

Has Juliet rendered services to, or performed work for Sidney beyond that which may normally be expected of a daughter?

[34] The Judge accepted that Juliet had provided support and services to Sidney but considered that detail of the services was lacking and the general support Juliet provided was no more than that which a loving daughter would provide. He dealt with the issue of services supplied by Juliet in the following way:[13]

[53] It is clear from the evidence that has been presented that Juliet had an exceptionally good relationship with Mrs le Couteur and that as part of that relationship Juliet provided a wide range of support, both practical and emotional. It is likewise clear that the love and support Juliet provided to Mrs le Couteur increased over time as Mrs le Couteur’s mental condition worsened and Juliet clearly continued to provide ongoing support after Mrs le Couteur was admitted to the Caughey Preston rest home, albeit on a reduced basis. It is equally clear, evidenced by Mrs le Couteur’s diary entries, that she greatly appreciated her relationship with Juliet and the ongoing support that she provided.

[54] Despite this, had it been necessary to do so I would have concluded there was insufficient detail provided by Juliet and Tony in their evidence to suggest that the types of services provided were other than would have been expected in any loving family relationship. In particular there is nothing in the types of services ... that would be unexpected in any family relationship. Whether in this case Juliet could be seen to have gone further than a normal family relationship is unclear given the lack of precision in the descriptions provided by Juliet. The lack of detail is particularly relevant with regard to any support provided up to at least 2002, when Mrs le Couteur was living independently without any clear problems, and I note that even after moving into 17B Taurarua Terrace Mrs le Couteur retained a large degree of independence notwithstanding her diagnosis of Alzheimer’s. I am therefore not satisfied that the ongoing care and support provided by Juliet was, in the circumstances of her relationship with Mrs le Couteur, work or services for the purposes of the Act, still less that there was any sufficient nexus with any promise by Mrs le Couteur to reward Juliet.

[35] As noted, it appears the Judge accepted Juliet had provided some services but considered there was insufficient detail of the following services despite listing them in the judgment:[14]
[36] With respect to the Judge’s conclusion that there was insufficient detail of the services, the services listed above do, in a number of instances, provide the detail of what were provided. While other services are of a more general nature they do not really need detailed elaboration for their significance to be accepted (for example (b)–(c), (e)–(h) and (j)–(n)). In any event there was further evidence in relation to some of the generally expressed services. For instance, Juliet and Tony included Sidney in their family life by taking her on holidays, sharing meals and by taking her out to lunches and dinners. Juliet confirmed that when Sidney was living at Taurarua Terrace she accompanied Juliet’s family on all outings, shopping trips and school events involving Juliet’s daughter. Sidney had her evening meals with them most nights and spent the evenings watching television with them. Juliet then would go with Sidney to her own home and help her get ready for bed. Another example of the services is that Juliet consciously chose not to work full-time and took a day off each Wednesday to take her mother on outings. Later, when Sidney was in Caughey Preston Juliet gave up days on her weekends to spend time with her mother.
[37] There is sufficient detail of the services provided. The real issue regarding the services provided by Juliet is whether the services were over and above that which might be expected of a loving daughter in a close family relationship.
[38] In Re Welch the Privy Council considered that it may be straining the scope of the Act to accept as sufficient, services which were no more than the natural incidents and consequences of life within a close family group.[15]
[39] In Byrne v Bishop this Court accepted that more was required than the normal expectations of family life but, importantly, it also confirmed that services could also include companionship and emotional support which exceeded what would usually be expected:[16]

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 at p 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.”

[40] Mr Cooper submitted that the services Juliet provided between 1989 and 2005 were no more than would be expected in a family context because between 1989 and 1995 Sidney’s husband Philip was alive and they were living together. No services were required. Between 1995 and 1997 Sidney was generally in good health, living independently and managing her own affairs. Between 1997 and 1999 Sidney lived with Juliet and Tony which was not a successful arrangement and she returned to the North Shore. While living with Juliet and Tony, Sidney had contributed financially to the joint household. Between 1999 and 2005 Sidney lived independently. After that, between 2006 and 2008 Sidney deteriorated and required more care but from 2008 shifted to Caughey Preston where she remained until her death. He suggested that if any qualifying services were to be found they could only possibly have occurred between early 2006 and 2008 when it was apparent Sidney was no longer coping on her own and needed more care, but during that period she had home care help four days a week.
[41] We are satisfied that the services provided by Juliet far exceeded the normal services that a dutiful child might provide their aged parent and are not to be confined to the limited period Mr Cooper argued for. When Philip died in 1995, Sidney was 72 years old. From then until she moved in Caughey Preston in 2008 at the age of 85, a period of some 13 years, Juliet and Tony included Sidney as part of their family in various ways and provided an extensive range of services and support for her. We consider Howard and Stephen have over-emphasised the significance of Sidney’s decision to return to live on the North Shore. She may have been upset on an occasion when Tony asked her to sign loan documents, but there was no breakdown in the relationship with Juliet. While Sidney chose to return to the North Shore in 2000, the evidence confirms Juliet continued her support of her mother at that time, even though that entailed additional time travelling over the Harbour Bridge. Further, it was after she returned to North Shore that Sidney made the promise in relation to Brett Avenue.
[42] Juliet’s involvement in her ongoing care at that time in particular enabled Sidney to live independently and also to enjoy courses of the University of the Third Age and her garden. Without the support of Juliet that may well not have been possible. Further, as Sidney grew older and became more and more dependent, the fact Juliet (and Tony) welcomed her into their family life was significant. As Hardie Boys J said in Thwaites v Keruse:[17]

“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.

[43] In Re Fagan (Deceased) Baragwanath J suggested that:[18]

... 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.

[44] In Samuels v Atkinson after referring to the above passages this Court said:[19]

[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.

[45] In the present case Juliet provided companionship, family life, support and affection well beyond the bonds of that of a dutiful daughter. While it is not a comparative exercise, Juliet’s care for her mother enabled her brothers to lead their own separate lives without them having to concern themselves about Sidney’s care.
[46] We find that the services Juliet provided were qualifying services for the purposes of the Act.

Is there a nexus between the services and the promise?

[47] If he had been required to determine the issue, the Judge said he would have found there was no nexus between the services provided and the promise.
[48] However that conclusion was no doubt influenced by the Judge’s earlier conclusions that the services were no more than examples of the usual care a loving daughter would provide her mother, and there was no promise for the purposes of the Act.
[49] It may be more difficult to establish a nexus in a family situation, but even where there are family ties and relationships the rendering of services within a family can still provide a sufficient nexus. In Re Archer Hillyer J noted the following passage from Jones v Public Trustee:[20]

... we do not consider that the claimant should be refused relief simply on the ground that he may have been influenced in part by more laudable considerations than purely mercenary ones. Thus, in the case of a relative who feels a moral obligation to assist an elderly member of his family, usually it would be unreasonable to conclude that he would not be encouraged and comforted in the knowledge that it was the intention of the deceased that his services should not go unrewarded. Indeed, now that it is clear that the promise may relate to past services, the motive of the person rendering the services ceases to be of any importance in the case of a promise to reward for past services.

[50] In Leach v Perpetual Trustees Estate and Agency Co of New Zealand Ltd the Judge at first instance had declined the claim on the ground there was not a sufficient nexus between the promise and the service. The finding was overturned by the Court of Appeal.[21] Richardson J said:

It is clear from Jones v. Public Trustee that, if and to the extent that the testamentary provision promised ... was in the nature of a reward for past services, their motivation in providing those services is immaterial.

[51] Hillyer J in Re Archer concluded, after considering the above passages:[22]

Finally, it is sufficient that the promise be in part as a reward for services. Family ties and other considerations may also be perceived as having influenced the making of the promise. That does not exclude a finding that the rendering of services was a further consideration.

[52] In the present case while family ties may have influenced Sidney, it seems clear that she was also moved to acknowledge what Juliet had done for her. There is express evidence of the nexus between the promise and the services in the note found by Juliet after Sidney’s death, and in Sidney’s diary notes. Importantly, the August 2002 note confirms Sidney’s intention to bequeath her then home to Juliet “in appreciation for all her loving kindness to me always”. The use of that wording ties the intended gift of the home to Juliet’s loving kindness (i.e. services) and confirms that the gift is made for that reason. It is an express recognition of the value Sidney placed on the services provided by Juliet, rather than out of any sense of obligation as a parent to a child. It is irrelevant that Juliet was not aware of the note until after Sidney’s death.
[53] Further, there are a number of relevant diary entries which confirm Sidney recognised her obligation to Juliet for the services and support she had provided her. It is sufficient to note the following entries:

17 May 2005:

Juliet came this afternoon after work. It is wet and rainy. Juliet has to pick up Bettina. Spoke to Tony — I am so very fortunate.

June 2005:

Dear Juliet so kind and patient with me. So generous in every way to me. The joy of my life — tears blur my eyes as I scribble this. I am looking forward to my new life. Cannot be too far off.

10 December 2005:

Dear Juliet so kind always — so busy. The sooner I go the easier for her in so many ways.

It seems Sidney sensed she was a burden on Juliet. She acknowledged the value of the services Juliet provided her. In that context it is not surprising that Sidney repeated her promise to reward Juliet.

[54] Tony’s evidence confirmed the sentiment expressed in the diary notes. He said:

[Sidney] often expressed concern to me about whether or not Juliet was excessively burdened by the care and support she was undertaking for her ... She agonised over whether Juliet should spend so much time with her.

[55] We find there was a sufficient nexus between the relevant promises and the services Juliet provided Sidney.

Capacity

[56] Mr Cooper submitted that there was overwhelming evidence in 2005 around the time the Parnell property was purchased that Sidney was exhibiting significant function and memory impairment as a result of Alzheimer’s disease. Mr Norris, the solicitor involved at the time, noted that Sidney deferred to Juliet about the detail of the purchase.
[57] Mr Cooper submitted the Court could not be satisfied that Sidney had the capacity to understand the nature or effect of the promise she was making and that, if Sidney had made a qualifying promise to Juliet, she did not have sufficient capacity to do so, so that any promise would be unenforceable. The Judge did not directly address the issue of capacity as it was unnecessary for him to do so.
[58] Sidney was first referred by her doctor, Dr Vanessa Fardon, to the Home and Older Adults’ Service of the Waitemata District Health Board in May 2001. At the time she was aged 78. The consultant noted that while Sidney disclosed some memory loss she was attending classes at the University of the Third Age, taking early modern European history, history of music, and architecture. She found the subject matter hard to follow and to remember. She reported that things slipped her mind. However, the consultant recorded that Sidney presented at the time as a quiet, intelligent, articulate, slim older woman. Her mental status score was 30/30 (normal). The consultant noted he was uncertain whether she had benign forgetfulness which occurs as a normal feature of ageing or whether she had an early but mild dementing illness. He had arranged a CT scan which he expected to be normal. It is notable that Sidney made the note regarding Brett Avenue just over a year later, in August 2002. There is no evidence of a lack of capacity at the time.
[59] It appears Sidney was not referred back to a consultant until January 2005. The reason for the referral was her deteriorating memory. The consultant noted there had been a gradual deterioration without any hint of sudden events. Sidney did not fit into the symptom category of a neuro-degenerative disorder such as Alzheimer’s disease although the diagnosis remained possible. He thought Sidney would have the insight to understand the implications of making sure a trusted family member or friend had an enduring power of attorney, in other words, sufficient mental capacity to execute such documents. The consultant noted her recent Minimental Status score of 27/30 was likely to be abnormal. She had significant loss of immediate recall and short-term memory and the relatively normal score was likely to reflect her higher premorbid intellectual status and achievement.
[60] By June 2005 when she was seen again, the consultant reported to Dr Fardon that by this time Sidney was diagnosed with Alzheimer’s disease (probable — mild). Amongst other matters he noted that he had discussed driving but considered that at that stage Sidney was safe to continue driving. The doctor said:

She is aware and accepting (in fact raised it herself) that at some stage she will need to stop driving and will be keeping a close eye on this herself as well as her daughter, yourself and I will also. Enduring Powers of Attorney are in place.

Again, the report does not support a finding of incapacity in terms of testamentary capacity at the time.

[61] In any event, by June 2005 the promises relied on in relation to Brett Avenue and the Parnell property had been made and the Parnell property purchased. We are satisfied that at all relevant times Sidney had sufficient testamentary capacity to make enforceable promises.

Quantum

[62] Sidney failed to make the testamentary provision promised to Juliet for the services and work she carried out for her. Juliet has made out her claim for relief under the Act.
[63] We have considered whether the matter should be referred back to the High Court on the question of relief but consider it better for the parties to have that particular issue resolved at this time.
[64] The Court is not able to direct the transfer of the property at 17B Taurarua Terrace to Juliet as it is not held in Sidney’s name. But the Court may make an award of such amount as may be reasonable, having regard to relevant circumstances. In making the award the Court may consider the circumstances in which the promise was made, the circumstances in which the services were performed, the value of the services,[23] the value of the promise, the amount of the estate and the claims of others, in this case Howard and Stephen.

Circumstances and value of the promise

[65] We have already discussed the circumstances in which the promises were made and the circumstances and nature of the services.

Value of the estate

[66] Mr Norris, an executor of the estate, prepared a statement of assets and liabilities for the estate as at date of death of 8 April 2016. That recorded a net value of the estate of $2,239,243 exclusive of chattels and personal effects. The value of $2.239 million included $800,000 noted as funds applied by Sidney to the purchase of the Parnell property.
[67] The position in relation to Sidney’s interest in the Parnell property is presently unresolved. At the time the three units were purchased Sidney contributed $800,000 towards the total purchase price of $1,800,000. The units all have separate titles. Sidney lived in one of the units, 17B Taurarua Terrace. Juliet and Tony and their family lived in one unit and the remaining unit was rented. Those two units are in Juliet and Tony’s name. However, the property at 17B Taurarua Terrace was never transferred into Sidney’s name. Instead a caveat was registered in the name of Juliet and Tony as they were recorded as the purchasers of all three units on the agreement for sale and purchase. There is no issue with the vendors who were, and, we understand remain, willing to transfer the property to a nominated purchaser. It seems that the matter was never resolved because concerns were raised about the need to arrange independent advice for Sidney. Regrettably although there was an exchange of correspondence between the two firms of lawyers involved at the time the matter was never finally resolved.
[68] Mr Cooper submitted that as the $800,000 contributed by Sidney represented four-ninths of the then purchase price of $1.8 million for the three properties, Sidney’s estate is entitled to four-ninths of the value of three properties even though two of the three are held in the name of Juliet and Tony. Separate proceedings have been issued seeking orders to give effect to that outcome.
[69] Juliet and Tony’s position is that it was always intended that Sidney would own the unit she lived in, 17B Taurarua Terrace. Subject to Juliet’s claim, they consider the property represents Sidney’s interest in the Parnell property.
[70] According to Quotable Value, as at July 2017 the three properties had a combined value of $3,650,000. That is made up as follows:

$3,650,000

On the basis of those valuations and substituting the $800,000 with a four-ninths share of the total value for the Parnell properties of $3,650,000, Sidney’s estate would be worth approximately $3,060,000.

[71] If, on the other hand, the position is as Juliet and Tony understand it to be, and Sidney is instead entitled to 17B Taurarua Terrace, then, substituting the values of 17B as at July 2017 Sidney’s estate would be worth approximately $2,419,000.
[72] There is evidence that the value of 17B Taurarua Terrace as at 16 February 2018 was estimated as between $1.225 million to $1.275 million, with a mid-point of $1.25 million. If 17B Taurarua Terrace were included as part of Sidney’s estate at that value, that in turn would value Sidney’s estate at approximately $2,689,000.
[73] On those scenarios, Sidney’s estate is worth between $2,420,000 and $3,060,000 approximately.
[74] In fixing the amount to be awarded to Juliet, it is relevant to have regard to other benefits that Juliet and Tony have enjoyed and the nature and amounts of other claims on the estate.
[75] The services provided were a substantial level of comfort and support. However it has to be acknowledged they were made in the context of a strong mother/daughter relationship and that Juliet would have enjoyed positive benefits from that relationship also. Juliet enjoyed her mother’s company. In addition, Juliet and Tony received other tangible benefits from their relationship with Sidney. While Sidney was supported by them, Juliet and Tony were able to purchase the units, including the rental unit, and also received a gift of $15,000 during Sidney’s life. In his evidence Stephen has attributed a value of $605,000 (approximately) to 17B Taurarua Terrace calculated on the respective value of the units when purchased based on the then CVs in proportion to the purchase price of $1.8 million. On that basis Juliet and Tony have already received a further benefit of approximately $195,000 being the difference between the $800,000 contributed by Sidney and the actual value of 17B Taurarua Terrace. The difference, the $195,000, can be attributed to the remaining two units which are owned by Juliet and Tony.
[76] Relief under s 3 of the Act is discretionary. We consider that a reasonable sum in the present circumstances is the sum of $590,000. While we find that Sidney promised to leave Juliet her home and was prepared to contribute $800,000 towards the purchase of 17B Taurarua Terrace, Juliet also received a benefit from her close relationship with her mother (and in addition tangible benefits of $15,000, and the further contribution which enabled Juliet and Tony to purchase the other two units in the Parnell property). It is also relevant that Juliet will receive a one-third share of the balance of Sidney’s estate in addition to the further provision under the Act.

Result

[77] The appeal is allowed.
[78] The judgment of the High Court is set aside.
[79] Juliet is awarded $590,000 from her mother’s estate under s 3 of the Act.
[80] Howard and Stephen must pay Juliet costs for a standard appeal on a band A basis and usual disbursements.
[81] Costs in the High Court are to be determined in that Court.






Solicitors:
Martelli McKegg, Auckland for Appellant
Cavell Leitch, Auckland for Interested Parties


[1] Le Couteur v Norris [2018] NZHC 1074.

[2] At [9].

[3] At [41].

[4] At [43].

[5] At [51].

[6] At [53]–[54].

[7] At [52].

[8] Nealon v Public Trustee [1948] NZGazLawRp 149; [1949] NZLR 148 (CA).

[9] Jones v Public Trustee [1962] NZLR 363 (SC) at 374; and Law Reform (Testamentary Promises) Act 1949, s 3(2).

[10] At 374.

[11] Byrne v Bishop [2001] NZCA 309; [2001] 3 NZLR 780 (CA).

[12] Powell v Public Trustee [2003]1 NZLR 381 (CA) at [3].

[13] Le Couteur v Norris, above n 1.

[14] At [37].

[15] Re Welch [1990] 3 NZLR 1 (PC) at 7.

[16] Byrne v Bishop, above n 11, at [6].

[17] Thwaites v Keruse (1993) 11 FRNZ 19 (CA) at 23.

[18] Re Fagan (Deceased) [1999] NZFLR 222 (HC) at 236.

[19] Samuels v Atkinson [2009] NZCA 556, [2010] NZFLR 980.

[20] Re Archer [1990] 3 NZLR 737 (HC) at 745, citing Jones v Public Trustee, above n 9, at 374–375.

[21] Re Archer, above n 20, at 745, citing Leach v Perpetual Trustees Estate and Agency Co of New Zealand Ltd CA48-88, 20 March 1990.

[22] Re Archer, above n 20, at 745–746.

[23] It is generally for the parties to assess the merits of the benefits being exchanged: Masters v The Public Trustee of New Zealand [2012] NZHC 1168 at [54].


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