Brown v Brown [2022] NZCA 476 (10 October 2022)

Last Updated: 17 October 2022

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA333/2021 [2022] NZCA 476

	BETWEEN	BELINDA BROWN Appellant
	AND	NICHOLAS BROWN AND ROBERT NAREV AS EXECUTORS AND TRUSTEES OF THE ESTATE OF RICHARD BROWN First Respondent
	AND	NICHOLAS BROWN Second Respondent

Hearing:	28 July 2022
Court:	Miller, Clifford and Dobson JJ
Counsel:	M G Locke for Appellant No appearance for First Respondent A H Waalkens KC and S A Beattie for Second Respondent No appearance for the Executors and Trustees
Judgment:	10 October 2022 at 10.00 am

JUDGMENT OF THE COURT

A The appeal is dismissed.

B Costs are reserved.
____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)


TABLE OF CONTENTS

Introduction

• [1] This appeal is brought by one of a number of claimants for provision out of the estate of Richard Brown (the testator), under the provisions of the Family Protection Act 1955 (the Act). The appellant (Belinda) is one of eight grandchildren of the testator.^[1] Belinda’s mother, Danielle, was one of two daughters of the testator (the other being Sarah), both of whom claimed for greater provision out of the estate than was provided for them. Sarah’s son (Brodie) who received a gift of $15,000 from the estate also sought further provision.
• [2] All their claims were unsuccessful.^[2] Belinda is the only applicant to have pursued an appeal.
• [3] The Court’s jurisdiction to order provision out of a deceased’s estate or on an intestacy is derived from s 4(1) of the Act, which provides as follows:

(1) If any person (referred to in this Act as the deceased) dies, whether testate or intestate, and in terms of his or her will or as a result of his or her intestacy adequate provision is not available from his or her estate for the proper maintenance and support of the persons by whom or on whose behalf application may be made under this Act, the court may, at its discretion on application so made, order that any provision the court thinks fit be made out of the deceased’s estate for all or any of those persons.

• [4] There was affidavit evidence before the High Court. None of the deponents were called for cross-examination. Most of Gordon J’s factual analysis is not now in issue. It is accordingly sufficient to take the factual background largely from the thorough analysis in the judgment under appeal.

The family circumstances

The testator

• [5] In 1951 the testator and his girlfriend (Delia) married, with family support, at the age of 17 or 18 years. Their child, Danielle, was born in 1952. The testator and Delia’s second child, Nicholas, was born in 1953 and a second daughter, Sarah, was born in 1957. There was some uncertainty as to precise dates and ages because of inconsistencies in the evidence, but nothing turns on it. It appears that they are now respectively about 70, 69 and 65 years old.
• [6] The testator set up a manufacturing business in the early years of their married life which ultimately became very successful. He devoted a lot of effort to the business and worked long hours. He and Delia separated in or about 1967. After that event Danielle lived with her mother and Sarah initially lived with her father, but following contested custody proceedings she also lived with her mother. Nicholas lived with his father.
• [7] The testator married his second wife (Catherine) in 1979. Catherine had two sons by a previous marriage.
• [8] The testator executed his final will in March 2011 and after numerous consultations with his solicitor, completed a codicil to it in July 2018. He died in August 2018.
• [9] Catherine has survived the testator. She was described at the time of the High Court hearing as being “not well”.^[3] She completed an affidavit in support of her stepson Nicholas’ defence of the claims in the proceedings.

Testator’s children and grandchildren

• [10] In explaining the family relationships and provisions in the testator’s will and codicil, the Judge annexed to her judgment a diagram outlining the relationships and provisions. There has been no challenge to its accuracy and we gratefully adopt and annex that diagram at the end of our judgment.
• [11] Danielle, the appellant’s mother, would have been approximately 15 years’ old when her parents separated. She had little contact with the testator after that. Danielle lived in Sydney for a short time where her first daughter, Anna, was born in 1972. At the age of 11 Anna was adopted out.
• [12] Danielle had two further daughters: the appellant in this appeal; Belinda, who was born in 1974; and Rachel who was born in 1985. Danielle has been married twice but at the time of the High Court hearing was living on her own in a home that she had purchased. She had mostly provided for herself financially since leaving home. Her father is not a presence in her life.
• [13] In March 1996, Danielle made allegations of sexual, physical and psychological abuse during her childhood against the testator. Her solicitor’s letter claimed $1.5 million as compensation for the harm. The testator denied the allegations and later that same year a settlement was reached pursuant to which the testator paid Danielle $20,000 without accepting any substance in the claims she had made. An acknowledgement signed by Danielle in return for that payment stated:

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

• [14] Danielle did in fact rely on those allegations of abuse in the High Court in the present proceeding, seeking to prove that she had been abused. Much of the judgment under appeal is concerned with this issue.^[4] She claimed that his hatred for her meant that she was shut out of his life and disadvantaged relative to her siblings.
• [15] Sarah, the testator’s younger daughter, maintained contact with the testator after her parents separated. Despite Delia being awarded custody of her, she worked for the testator in the holidays at his factory and lived with him for a period prior to his second marriage to Catherine in 1979, at which time Sarah moved out. Sarah was then aged 23 and was working for the testator. In 1981 she had a daughter, who was adopted out. Sarah married in 1984 and had a son, Brodie, in 1985. That child was the testator’s first grandson. Sarah and her husband separated in 1987 and she enjoyed support from the testator for many years thereafter.
• [16] In 1999 the testator settled the E Trust for the benefit of Sarah and Brodie. That trust has purchased different properties as homes for Sarah and Brodie from time to time and at the time of the High Court hearing Sarah continued to live in a house owned by the E Trust. Sarah was paid a weekly allowance by the testator. We summarise Brodie’s position in dealing with his claims at [29]–[34] below.
• [17] The testator’s son, Nicholas, was born in 1953 and the two enjoyed a very close relationship until the testator died. Nicholas worked with the testator in the school holidays and went to work permanently in the testator’s business after he left school. He became the general manager of the business from about 1980. His evidence was that he was not paid anything like a fair wage for the work he was performing until a restructuring of the business was undertaken by the testator around 1985. Nicholas agreed to buy his father out of the business over a period of five or six years. From then until the business was closed in 1999 Nicholas deposed that the testator remained involved, giving him guidance and advice. Further, in the early 2000s when Nicholas set up another business, the testator provided advice and financial support.
• [18] Nicholas also remained close to his stepmother. Nicholas had four children who all remained close to the testator. Nicholas is divorced from the mother of his children.
• [19] In 2004 the testator settled the R Trust for the benefit of Nicholas and his children.

The estate and the testamentary provisions

• [20] The Judge summarised the estate as having a total value of just over $7.74 million. It comprised:^[5]

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

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

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

(d) A portfolio of five residential properties (not including the home he and Catherine had occupied) having a total value as at January 2021 of $4.725 million.

• [21] The cash balance had been reduced by $20,000 to pay out Rachel, the youngest of Danielle’s three children, who had settled a claim she had brought against the estate under the Act.
• [22] After specific gifts and bequests, the testator had divided the residue of his estate into eight equal parts. In considering the claims, the High Court conservatively valued a one-eighth share in the residue at $306,250.^[6] Danielle, in pursuing her claim, adopted the figure of $334,000 for a one-eighth share in part because she anticipated that the funds set aside for periodic payments to Catherine of $500,000 were likely not to all be used in the provision of six-monthly payments of $25,000.
• [23] The Judge accurately summarised the effect of the bequests as follows:^[7]

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

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

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

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

(e) Five grandchildren (Nicholas’ four children and Danielle’s oldest daughter): one-fifth each of two-eighths of residue. There was no provision for Danielle’s two other daughters, Belinda and Rachel. None of the grandchildren are minors;

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

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

(h) R Trust: debt to [the testator] forgiven. ([B]eneficiaries of the R Trust are Nicholas and his four children).

• [24] Other gifts of $20,000 each were made to Nicholas’ former wife and the testator’s two stepsons, namely the sons of his second wife Catherine.
• [25] Nicholas and an Auckland solicitor are the executors and trustees of the testator’s estate. In his personal capacity as a substantial beneficiary of the estate, Nicholas opposed each of the four claims against the estate that went to hearing.

The claims

• [26] The testator’s two daughters, Danielle and Sarah, both sought larger provision out of the estate. The Judge projected Danielle’s existing entitlement from the estate at an amount between $612,500 and $668,000. Danielle claimed that the testator breached his moral duty to her when he failed to redress the alleged physical, psychological and sexual abuse he had subjected her to and that the resulting lifetime estrangement was his fault. As to her needs, she stated that she had “made a modest success of her life”.^[8] She lived in her own home with a relatively small mortgage but is retired and her only income is government superannuation. Danielle’s claim for further provision sought a value similar to two of the five properties that had been left to Nicholas which, when added to the provision already made for her, would amount to a total of some $2.7 to $2.8 million.
• [27] Sarah was gifted a one-eighth of the residue amounting to approximately $306,000. In addition, she and her son Brodie were beneficiaries of the E Trust which was gifted $100,000 in the testator’s will. The E Trust also received one-eighth of the residue. Sarah claimed a close relationship with the testator but Nicholas and Catherine disputed that. As to her needs, she has suffered PTSD and chronic depression, is in receipt of ACC payments and receives an income of $300 per week from the E Trust. She lives in a home owned by the E Trust.
• [28] The Judge noted that both Danielle and Sarah have previously made claims in relation to the wills of other family members. In or about 1995 they both claimed against the estate of their paternal grandmother, receiving $10,000 each, and in 2012 they each made claims against their mother’s estate and were awarded $7,000 each.^[9]
• [29] Sarah’s son Brodie also claimed further provision from the testator’s estate. He received a gift of $15,000 under the will and is also a beneficiary in the E Trust. His circumstances were described in affidavits provided by Sarah, with nothing from Brodie himself. He is described as living in Australia in accommodation provided by a charitable institution. He has an alcohol addiction with occasional relapses requiring hospital treatment and is unemployed.
• [30] Sarah deposed that therapy offered by Alcoholics Anonymous in New Zealand would be superior to what Brodie is able to access in Australia, and there is some uncertainty as to whether a minor criminal charge remained outstanding.
• [31] On Sarah’s evidence it appeared that Brodie does not know his biological father who had never contributed to his support. His claim was advanced on the basis that he has an immediate need for financial assistance. It was also proposed on his behalf that a new and independent trustee should be appointed to control the E Trust in his interests.
• [32] Sarah claimed that there had been a very close relationship between the testator and Brodie with the testator paying his private school fees until he reached secondary school age. There had also been financial and other support provided by the testator including assistance when Brodie’s alcoholism became apparent. However, that relationship did not endure.
• [33] In opposing Brodie’s claim, it was submitted for Nicholas that his status as the final beneficiary of the E Trust together with the existing legacy were sufficient to provide for his support.
• [34] Coming then to the appellant’s claim. At the time of the High Court hearing Belinda described herself as a 45-year-old mother of three and a stepmother of another child. She lives in Queensland and works as a registered nurse. The joint incomes of she and her husband are approximately $107,000 per annum. Their total assets, including a mortgaged home, are valued at approximately $885,000, offset by liabilities of some $539,000. Belinda was diagnosed with leukaemia in early 2018 which required her to take time off work. At the time of the hearing she also needed more surgery which would require even more time off work. Two of Belinda’s children still live with her. She sought an award of $625,000.
• [35] Belinda claims to have had a good relationship with the testator from her younger years and continuing into her twenties. The positive relationship ended when her mother, Danielle, made her claims of abuse against the testator in 1996. She stated she felt it was “morally correct” to support her mother in that matter, with the result that the testator became distant from her. She claimed to have made subsequent attempts to contact him but had been rebuffed.
• [36] Nicholas and Catherine disputed these claims as to the nature of Belinda’s relationship with the testator. Nicholas deposed that Belinda had not shown any interest in the testator and Catherine deposed that Belinda had only visited the testator once some 30 years ago and that there had not been any contact from her since.
• [37] It was submitted for Nicholas that if an increased provision was to be made for Belinda, then it ought to be by reducing the larger provision that had been made for her mother, Danielle.

Evidence on preparation of the codicil

• [38] Ann Davidson, a consultant with Sellar Bone, Solicitors in Auckland had taken the testator’s instructions for preparation of a codicil to his 2011 will. Ms Davidson provided an affidavit exhibiting the file notes and other documents relevant to those instructions, including notes of the four meetings she held with the testator, in the company of his wife Catherine. The notes record Ms Davidson raising the prospect of claims under the Act if Danielle were not included as a residual beneficiary at all, which the testator had raised as an option, and she recorded the testator’s reasons for smaller or no provision for certain family members, including Belinda, with whom he considered he had no connection.

The High Court judgment

• [39] The Judge dealt first with Danielle’s claim. She held that, on the balance of probabilities, Danielle had not discharged the onus in making out the allegations of abuse.^[10] The Judge found that Danielle could not be held responsible for her estrangement from her father in her younger years and the issue was whether the will and more particularly the codicil was sufficient to make good the consequences of their estrangement.^[11] In explanation for the provision that had been made for her, Ms Davidson’s file note recorded in respect of Danielle:

... from whom he is estranged – and has been for some time – to recognise her as part of his family.

• [40] Having regard to the extent of the provision made and Danielle’s moderate financial position, the Judge concluded there was no breach of moral duty and Danielle’s claim was dismissed.^[12]
• [41] In assessing Sarah’s claim, the Judge acknowledged that she had received weekly payments from the testator totalling well over $500,000.^[13] It was acknowledged that the testator had not neglected her, but inequality of provision relative to her siblings (Danielle and Nicholas) was said to constitute a breach of his moral duty.
• [42] Having regard to the benefit Sarah would receive as a beneficiary of the E Trust and the extent of the existing provision, the Judge concluded that she had been well and appropriately provided for by her father and her claim was dismissed.^[14]
• [43] Turning to Brodie’s claim, the Judge found that the testator had assumed responsibility for both Sarah and her son Brodie when he was younger given Sarah’s history of alcohol abuse. Sarah claimed that the testator was an important male influence and support for Brodie in his early years. The Judge held that the testator had continued to provide support when Brodie became an alcoholic from at least 2009, including supporting him to attend rehabilitation programmes in Hanmer Springs and in Hamilton.^[15]
• [44] However the Judge also acknowledged Nicholas’ evidence that Brodie had been completely disconnected from his grandfather for many years. Nicholas was not aware of Brodie having visited the testator in the last 15 years of the testator’s life.^[16]
• [45] The Judge found that the testator had given careful thought to the provision made for Brodie and that it was sufficient to discharge the testator’s duty to this grandson and his claim was accordingly dismissed.^[17]
• [46] Coming to the appellant, Belinda’s claim, the Judge was mindful of the explanation for her exclusion in Ms Davidson’s evidence. The testator advised Ms Davidson that there were grandchildren he had not made either any provision or smaller provision for than Nicholas’ children and Anna because he had very little if any contact with them. One of Ms Davidson’s handwritten notes included:

[Belinda] à Left whole family. Disappear. Surfers Paradise? ... Doesn’t keep in touch.

• [47] In a subsequent typed file note prepared when the codicil was executed, Ms Davidson recorded that his intention was (among other things) to “make better provision for his daughter [Danielle] and provision for [Nicholas’s] [four] children plus [Danielle’s] daughter [Anna] – all of whom [the testator] has a good relationship with and are important in his life”. He advised that there were grandchildren he had not made provision for as he had very little if any contact with them. It appears that the increased provision for Danielle owed less to his belief that he owed her support than it did to his view that she might well sue the estate if he did not.
• [48] The affidavits included an acknowledgement from Belinda that her grandfather had become distant towards her once she supported her mother in the 1996 claim of abuse made against him. She deposed that she had a very good relationship with him when she was younger and he provided her with assistance when she first moved out of home at the age of 16. But following her mother’s allegations against the testator, which she thought it morally correct to support, she was forced into an estrangement and from that point he became distant towards her. She maintained that she had attempted on many occasions to make contact with him, but her attempts were not well received. He refused to see her or her children. These claims were disputed. Catherine’s recollection was that there had been no contact from Belinda since a visit some 30 years previously and Nicholas said that the testator never spoke of any relationship with or any interaction with Belinda.
• [49] The Judge found that the primary obligation to provide for Belinda rested with her mother, Danielle.^[18] Recognising an estrangement between the two — Danielle has not told Belinda where she now lives — the Judge suggested that if Danielle did not make provision for Belinda in her will then it would be open for Belinda to pursue a claim under the Act against her mother.^[19] The Judge rejected Belinda’s claim for equivalent or similar treatment to five of the testator’s other grandchildren on the ground that it was understandable that a testator would treat one grandchild who had a close relationship with that grandparent in preference to one who had had minimal or no contact.^[20]
• [50] Accordingly there was no breach of the testator’s moral duty to Belinda and her claim was dismissed.^[21]

Arguments on appeal

• [51] Mr Locke filed very thorough submissions in which he carefully reviewed the authorities. Other cases are helpful in a general sense because they illustrate circumstances in which a moral duty has been found present or absent. But that is usually as far as they can be pressed, because they all turn on their frequently idiosyncratic facts. This case is no exception. For this reason we do not find it necessary to traverse the many examples referred to in argument.
• [52] Mr Locke characterised Belinda as the only party to the High Court claims who is not a beneficiary of the will or codicil, a beneficiary of either trust or a party who has settled a claim. On various grounds, he submitted that the Judge failed to correctly assess her needs for maintenance and support.
• [53] Grandchildren of a deceased living at his death are included in the categories of persons who may apply for provision out of an estate.^[22] The Act more specifically provides in the case of claims by grandchildren:^[23]

(2) In considering any application by a grandchild of any deceased person for provision out of the estate of that person, the court, in considering the moral duty of the deceased at the date of his death, shall have regard to all the circumstances of the case, and shall have regard to any provision made by the deceased, or by the court in pursuance of this Act, in favour of either or both of the grandchild’s parents.

• [54] Mr Locke submitted that there was evidence that the testator had no knowledge of Belinda’s needs and made a somewhat capricious decision based on the perceived failure by her and some others of the claimants to stay in contact with him.
• [55] Mr Locke listed seven factors that he relied on in support of the appellant’s claim. They are as follows:^[24]

(a) The appellant’s particular financial and health circumstances and the theoretical but nevertheless real possibility of the appellant in fact predeceasing her mother, should the appellant’s [Leukaemia] recur and be unresponsive to further treatment.

(c) The substantial size of the estate, and the ability of the estate to meet all just claims against it in absolute terms.

(e) The absence of any provision for the appellant from the deceased’s estate.

(f) The absence of any significant inter vivos support for the appellant from the deceased or by way of family trust.

(g) The absence of any significant support during the appellant’s lifetime from any other source.

(i) The appellant’s estrangement from and lack of any realistic expectation of future support from her mother.

(j) The significant provision made for six of the other seven grandchildren from the estate and by way of inter vivos trusts.

• [56] Mr Locke invited the Court to take judicial notice of the significant prospect that, whilst Belinda’s leukaemia was in remission, there was a real prospect of it returning which meant that her life expectancy may be shorter than that of her mother. That consideration, plus the fact that her circumstances made out a current need for provision, were factors which arguably ought to have been taken into account, but were not accorded any weight in the High Court judgment.
• [57] Mr Locke also argued that the disparity of treatment of various of the testator’s grandchildren was not borne out by the relative strength of their relationships with him and their levels of need for maintenance or support. In particular, he contrasted the gift to Brodie where there had been substantial support during his early years, and then complete alienation during Brodie’s adult years despite which he was still provided for. Mr Locke also invited comparison with a provision of one-fifth of two-eighths of the residue to each of Nicholas’ four children and Belinda’s sister who had been adopted out but still received the same entitlement. On the premise that disparity of treatment needed to be rationalised, Mr Locke submitted that there was no justification for Belinda being the only grandchild who has received nothing either out of the estate or by way of being a beneficiary of an inter vivos trust.^[25]
• [58] Mr Locke also submitted that Danielle’s estrangement from the testator, however caused, did not lessen the testator’s moral duty to Belinda merely because Danielle was her mother. In circumstances where Danielle, living an eccentric lifestyle, has severed contact with Belinda, a prudent testator would appreciate the need to provide for a grandchild in Belinda’s position, having regard to the real prospect that her own mother would not make provision for her.
• [59] Opposing the appeal on behalf of Nicholas in his personal capacity, Mr Waalkens KC made the following points:

(a) Danielle’s circumstances do not take her out of the cases where a grandchild can be expected to look primarily to their parent or parents for maintenance and support.

(b) The evidence of Belinda’s medical condition confirms that her condition has been successfully managed and there was no evidence to justify an assumption that either the condition is terminal, or that she is likely to predecease her mother.

(c) Belinda had supported the allegations of misconduct brought against the testator by Danielle, having made her decision to support her mother for her own sake. She had had no contact with her grandfather for at least the last two decades of his life.

(d) The detail of the financial position did not make out the case for immediate need.

(e) Disparity of treatment between her and other grandchildren of the testator was adequately and accurately recognised by the Judge. The circumstances of each grandchild’s relationship with the testator justified the disparity.

Applicable principles

• [60] The broad principles applying to claims under the Act are well settled. There can be no criticism of the Judge’s summary, which recognised the following points.^[26] The starting position, as recognised in this Court’s decision in Williams v Aucutt, is that testamentary freedom remains except to the extent that there has been a failure to make proper provision for the maintenance and support of those entitled to it.^[27]
• [61] In summarising the consideration of whether a testator has breached his or her moral duty, the Court in Williams adopted the observations from an earlier decision of this Court as follows:^[28]

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

• [62] The Judge also acknowledged further observations from Williams on what is covered by the concepts of maintenance for and support of a claimant. The notion of support is wider than that of maintenance, and supporting a child’s path through life is not simply a matter of financial provision, but also requires the recognition of a sense of belonging to a family. Where the size of the estate is more than sufficient to meet other needs, then a provision so small as to leave a justifiable sense of exclusion from participation in the family estate might not amount to proper support for the family member.^[29]
• [63] A further point made in Williams was that perceived unfairness arising from disparity of treatment between potential beneficiaries is not of itself sufficient to override the testator’s wishes. A claimant must instead make out that a testator or testatrix has not acknowledged a need for maintenance and support.^[30]
• [64] In considering claims by grandchildren of the testator, this Court has cautioned against setting down rules that might confine the approach provided for in s 3(2) of the Act.^[31] The Judge cited the High Court decision of Gallen J in Jones v Molesworth, which illustrated that there is a continuum, starting with more usual cases where a testator can probably discharge all duties by making provision for their children, who can reasonably be expected in their term to make provision for the testator’s grandchildren. At the other end of that continuum will be much more unusual cases where a grandparent may have taken full responsibility for a grandchild, giving rise to a moral obligation that may come close to that owed to children.^[32]
• [65] We have noted that the statutory jurisdiction is expressly discretionary, which has implications for the standard of appellate review. In the passage from Little v Angus which we have quoted at [61] above, this Court stated that experience has taught that an appellate court should not substitute its discretion for that of the trial judge unless there be made out some “reasonably plain ground” on which the order should be varied. This Court has recently held in Talbot v Talbot that whether or not there has been a breach of duty is an evaluative question,^[33] while the decision to grant a remedy is discretionary and will only be reviewed on May v May grounds.^[34] We doubt that this effected any substantive change to the traditional, flexible standard of appellate review. In many cases the existence and extent of the moral duty will be the decisive consideration, but an appellate court will not intervene in an evaluative decision unless persuaded that the court below was wrong and that onus is frequently difficult to discharge in this jurisdiction.

Analysis

• [66] We begin with the estrangement between Belinda and her grandfather. It is understandable that Belinda would take her mother’s side, at least initially, and we accept that the initial estrangement should not be attributed to Belinda. Nor would it detract from any moral duty that the testator owed Belinda that, as it turned out, Danielle failed to prove the abuse. Danielle’s allegations would not preclude an obligation, in appropriate circumstances, to ascertain a grandchild’s needs and if appropriate make some provision for them.^[35]
• [67] But the fact remains that testator and grandchild had been estranged since 1996, when Danielle made her allegations, and they remained so until the testator’s death, when Belinda was middle-aged. Mr Locke argued that Belinda repeatedly attempted to contact the testator. While the Judge did not say so expressly, we think it clear that she found this claim had not been made out. The Judge approvingly quoted Ms Davidson’s file notes, the substance of which was that Belinda had disappeared and did not keep in touch.^[36] We see no reason at all why the testator should have made that up when discussing with his lawyer his moral obligations to his family. We do not accept Mr Locke’s faint submission that the testator’s capacity to weigh all relevant factors was wanting by that late stage of his life; the evidence of Ms Davidson indicates rather that he retained testamentary capacity and was alert to his obligations.
• [68] We are not persuaded that the Judge was wrong on this important factual question. It follows that the claim must be approached on the basis that the estrangement was longstanding, complete, and, on Belinda’s part, voluntary.
• [69] The Judge found it unsurprising that Belinda was not provided for in these circumstances:

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

• [70] It will be seen that the Judge attributed the different provision for other grandchildren to their close relationship to the testator. She concluded that there was no breach of moral duty.^[37]
• [71] Mr Waalkens argued that on the evidence Belinda has no need of support. She works as a nurse and she and her husband have net assets of $345,000. It is immaterial that other grandchildren were better provided for, given their close relationship with the testator. The Judge did not make a finding on this issue, having concluded that there was no breach of moral duty. In our view Belinda does have need of support. Her means and resources are modest. She has had limited ability to work during her illness, she and her husband have dependants, and they were forced to spend substantial sums on repairing a previous home which was found in 2015 to be infested with termites.
• [72] Mr Locke argued that the testator overlooked Belinda’s need for support. The difficulty with this submission is that there is no evidence the testator knew anything of her circumstances. The argument relies on evidence tendered at trial and, in particular, a post-trial affidavit that she was permitted to file to update the evidence of her financial position.
• [73] Mr Locke was accordingly forced to argue that the testator was under a duty to inquire into Belinda’s circumstances before deciding what provision he should make for her. The argument supposes that he was under a continuing duty to monitor her circumstances. We are not persuaded that his obligation as a wise and just testator extended so far, at least in circumstances where he was estranged from an adult grandchild and responsibility for that state of affairs cannot be laid at his door. That is particularly so when the full extent of her family’s financial difficulties, caused by her cancer diagnosis in late 2017, would have been realised only months before his death; the codicil was executed in July 2018 and he died the following month.
• [74] The Judge also found that it is Danielle who has the primary obligation to provide for Belinda:

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

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

• [75] Mr Locke argued that the Judge was wrong to rely on Danielle’s obligations to Belinda. The two are estranged and there is no reason to think that Danielle experiences any obligation to provide for her daughter, or that her estate will be able to do so having regard to her spendthrift ways. He invited us to take judicial notice of a likelihood that Belinda might predecease her mother. Mr Waalkens responded that it is speculative to suggest Danielle will not provide for her daughter. He pointed out that Danielle says their relationship is not always easy but maintains that she is devoted to Belinda.
• [76] We accept that Danielle may well not provide for Belinda. She refused to provide financial support when Belinda was ill with cancer and facing large medical bills. She appears to have seized on pretexts to justify her inaction, although Belinda also accepted that Danielle was unlikely to be in a position to provide much financial assistance. We also accept that the testator did not justify his decision with respect to Belinda by adopting an assumption that Danielle would provide for her. It would be surprising had he done that, given his disillusioned view of Danielle. He based his decision on Belinda’s failure to stay in touch with him.
• [77] The fact remains, though, that the testator did provide substantially for Danielle, placing her in a position where she could provide in turn for her own daughters. The legislation recognises that this may bear on the existence of any moral duty to provide separately for a grandchild, and it requires that the court have regard to any provision that the testator made for the grandchild’s parent.^[38] It is an assessment to be made in all the circumstances of the case. Having rejected Danielle’s claim that the testator had abused her, the Judge found that his provision of a substantial monetary sum for Danielle was adequate.^[39] She was obliged to take it into account when considering Belinda’s claim. We add that we are not prepared to speculate, in the absence of evidence, that Belinda’s life expectancy is shorter than Danielle’s.
• [78] In the result, the testator and Belinda had long been estranged, she has not shown that the estrangement was his choice, he was not aware of any need for maintenance and support on her part, and he had provided for her mother, who is obliged in turn to provide for Belinda. In these circumstances we are not persuaded that the Judge was wrong to find the testator owed no moral duty to provide separately for Belinda. We do not accept that his decision to provide for other grandchildren made the omission in her case “capricious or wholly unjust”.^[40]

Result

• [79] The appeal is dismissed.
• [80] Counsel asked that we reserve costs. We do so but record that in this Court costs ordinarily follow the result and seldom depart from scale. We record that we would ordinarily order that Belinda pay costs for a standard appeal on a band A basis. Her means are limited, but that does not in itself warrant a departure from the usual rule. Counsel may seal judgment accordingly if they are in agreement. Failing that, Mr Waalkens may file submissions within 14 days of the date of this judgment and Mr Locke may reply within a further seven days. Submissions should not exceed five pages.

Solicitors:
Davenports West, Auckland for Appellant
Denham Bramwell, Auckland for Second Respondent

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^[1] The High Court anonymised the names of the participants, having regard to the nature of some of the allegations made against the testator. We adopt the same assumed names.

^[2] Brown v Brown [2021] NZHC 1045 [Judgment under appeal].

^[3] At [21].

^[4] At [101]–[164].

^[5] At [22] and [24]. It was accepted at the hearing before us that [22] contains a typo and the assets in the state are worth $7.74 million, not $7.4 million.

^[6] At [25].

^[7] At [26] (footnotes omitted).

^[8] At [30].

^[9] At [14].

^[10] Judgment under appeal, above n 2, at [162].

^[11] At [167]–[168].

^[12] At [174] and [176]–[178].

^[13] At [192]–[194].

^[14] At [202]–[203].

^[15] At [217]–[218].

^[16] At [219].

^[17] At [220]–[223].

^[18] At [213].

^[19] At [214].

^[20] At [215].

^[21] At [216].

^[22] Family Protection Act 1955, s 3(1)(c).

^[23] Section 3(2).

^[24] We have used the non-sequential lettering used in Mr Locke’s submissions.

^[25] This proposition depended on her sister being treated as having received $20,000 from the estate in settlement of her claim under the Act.

^[26] Judgment under appeal, above n 2, at [68]–[70].

^[27] Williams v Aucutt [2000] NZLR 479 (CA) at [33].

^[28] At [35], quoting Little v Angus [1981] 1 NZLR 126 (CA) at 127.

^[29] At [52].

^[30] At [37].

^[31] Re Houghton (Deceased) [1976] 1 NZLR 251 (CA) at 255. The section is set out at [52] above.

^[32] Jones v Molesworth HC New Plymouth A71/85, 14 November 1986 at 8.

^[33] Talbot v Talbot [2017] NZCA 507, [2018] NZFLR 128 at [37].

^[34] May v May [1982] 1 NZFLR 165 (CA) at 170.

^[35] See for example Abbey v Patterson [2014] NZFC 8621.

^[36] Judgment under appeal, above n 2, at [208]–[211].

^[37] At [216].

^[38] Section 3(2).

^[39] Judgment under appeal, above n 2, at [162] and [177].

^[40] See McGee v Cairns HC Hamilton M 83/92, 4 August 1995 at 13.