Rippey v Hunt [2014] NZHC 1694 (18 July 2014)

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UNDER	the Family Protection Act 1955
IN THE MATTER	of an appeal against a decision of the Family Court at Hamilton
BETWEEN	PAUL PIAHANA RIPPEY Appellant
AND	PAMELA ANITA HUNT, VALERIE ELAINE MAISEY AND VIRGINIA ANNE HETA _Respondents

Hearing:	7 April 2014
Counsel:	A M Cook for Appellant R H K Jerram for Respondents
_Judgment:	_{18 July 2014}

1952. For the next 56 years, until Mrs Rippey’s death in 2008, the couple lived and worked together on the family farm. One block of the farm was solely owned by Mrs Rippey, having been given to her by her father. The larger block was jointly owned by the couple, who progressively bought out other landowners over the years. They raised their five children¹in the farm homestead, as well as caring for numerous foster children and other family members over the years.

[2] Mrs Rippey left her residuary estate, which primarily consisted of her interest in the family farm, to four of the five children of her marriage, in equal shares. The couple’s fifth child, Paul Rippey, was expressly excluded from his mother’s will, on the basis that “he has been supported by me for a period of not less than nine years prior to execution of this my will and will continue to receive these benefits at his option in the foreseeable future”.

[3] Mr Rippey challenged his mother’s will, pursuant to the Family Protection Act 1955 (“Act”). He claimed that his mother had breached her moral duty to him by not making provision for him in her will. He sought an equal share of his mother’s estate.

[4] Mr Rippey’s claim was unsuccessful in the Family Court. Judge R H Riddell concluded that Mrs Rippey’s moral duty to her son had been discharged during her lifetime, via gifts and other benefits and support that he had received from both his parents. In particular, the Judge found that Mr Rippey had been given $225,000 by his father in about 2002, of which $90,000 had been spent for the benefit of his parents and siblings. The remaining $135,000 had been used for his own purposes.

[5] In addition, Mr Rippey had received substantial benefits from living on his parents’ farm for 31 years, including free rent (which the Judge assessed as being

¹In addition Mrs Rippey had an older daughter who was raised by Mrs Rippey’s parents. She is

worth $122,200, calculated at a “reasonably minimal rate”). He had also received intermittent payments from lessees of the farm (usually $500), free insurance, rates, water, firewood and use of farm property. In addition, Mr Rippey had run a profitable operation growing and selling cannabis from the farm, despite his parents’ disapproval.²

$380,000. Taking all of the benefits Mr Rippey had received into account, the Judge concluded that Mr Rippey had in all likelihood received his fair share of the estate during his mother’s lifetime. Ultimately the Judge was “not inclined to disregard the express statement of the testatrix”, made eight years after Mr Rippey started living on the farm with his family.

[7] The Judge also took into account the effect of an order on the other beneficiaries. Mr Rippey was not willing to agree with his siblings that he would not require his share in cash, which would effectively mean the farm would have to be sold to realise any award. The land is, however, very important to Mr Rippey’s siblings, who are Maori. They wish to retain it for future generations.

[8] The Judge further held that, even if she were incorrect in finding that there had been no breach of moral duty, the extent of Mr Rippey’s cannabis operation was sufficient to disentitle him from any share in his mother’s estate. Mr Rippey’s cannabis growing activities were illegal and he was challenged about his behaviour by family members on a number of occasions. He continued to run a profitable cannabis operation from the farm, however, “wilfully and deliberately, in the knowledge that not only his parents but his siblings disapproved”.

[9] Mr Rippey appeals Judge Riddell’s decision.³Mr Rippey says that the Judge erred in concluding that his mother did not breach her moral duty to him by failing to

²One witness (who the Judge found to be credible) said that Mr Rippey had told him that he had made $40,000 in 1989 alone from his cannabis crop. The Judge concluded that, over the period of 31 years that Mr Rippey has resided on the farm, his cannabis operation had generated a significant income, even if he did reduce his involvement in later years as he claimed.

³This is a general appeal, by way of rehearing. The well known observations of the Supreme

make provision for him in her will. In particular, he says that the Judge erred in fact and in law:

(b) by not taking proper account of the work he undertook on the family farm and in caring for his parents;

(c) by taking into account the effect that making a financial provision for him would have on the ownership of the family farm;

(d) in determining that the farm accounts and expenses were completely separate from the personal expenses of the family;

(e) in determining that the total amount of payments made by Mr Wills for family expenses was only $90,168.63;

(f) in determining that the financial support provided by Mrs Rippey to his siblings had been minimal;

(g) in determining that the financial assistance provided to him by his father was relevant.

[10] Mr Rippey further alleges that the Judge erred in finding that his growing and dealing cannabis from the farm amounted to disentitling conduct on his part.

[11] The legal principles applying to claims under the Act are well settled. The statutory foundation for the claim is 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

Court in Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 accordingly apply.

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.

[12] Subsequent case law has identified the key principles that apply in relation to claims under s 4 of the Act. The key principles that are relevant to this case are that:⁴

(a) The test is whether, objectively considered, there has been a breach of moral duty by Mrs Rippey, judged by the standards of a wise and just will-maker.

(b) Moral duty is a composite expression which is not restricted to mere financial need but includes moral and ethical considerations.

(c) Whether there has been such a breach is to be assessed in all the circumstances of the case including changing social attitudes.

(d) The size of the estate and any other moral claims on Mrs Rippey’s bounty are relevant considerations.

(e) It is not sufficient merely to show unfairness. It must be shown in a broad sense that Mr Rippey has need of maintenance and support.

(f) Mere disparity in the treatment of beneficiaries is not sufficient to establish a claim.

(g) If a breach of moral duty is established, it is not for the Court to be generous with the testator’s property beyond ordering such provision

⁴This summary is based on Randerson J’s summary of the relevant legal principles in Vincent v Lewis [2006] NZFLR 812 (HC) at [81] which in turn summarised the principles expressed in a number of leading cases including Little v Nagus [1981] 1 NZLR 126 (CA); Williams v Aucult [2000] 2 NZLR 479 (CA); Re Leonard [1985] 2 NZLR 88 (CA); Re Shirley CA155/85, 6 July

1987; Auckland City Mission v Brown [2002] 2 NZLR 650 (CA) and Flathaug v Weaver [2003] NZFLR 730 (CA).

(h) The Court’s power does not extend to rewriting a will because of a perception it is unfair.

(i) Although the relationship of parent and child is important and carries with it a moral obligation reflected in the Act, it is nevertheless an obligation largely defined by the relationship which actually exists between parent and child during their joint lives.

[13] I now consider, in turn, each of the particular issues raised by Mr Rippey on appeal.

[14] Mr Rippey appears to have limited assets and is reliant on a WINZ benefit for income (putting to one side any income he makes from cannabis dealing). Judge Riddell observed that he appears to have few assets, comprising only chattels, a vehicle and a small debt of $2,500. Once matters are determined the estate will either need to sell the farm or one or more of the beneficiaries will need to buy the others shares in the property. In either event Mr Rippey will need to find a new home. Mr Rippey also has three adult children, one of whom has cerebral palsy and is on a sickness benefit.

[15] The siblings expressed some scepticism as to their brother’s claimed impecuniosity, suggesting that he is skilled at hiding assets, partly to ensure that his WINZ benefit is not prejudiced. Further, they suggested that any financial difficulties were, in effect, self-inflicted, due to Mr Rippey’s tendency to “play the pokies”. That may or may not be the case, but for present purposes I accept, as Judge Riddell did, that Mr Rippey is currently of limited financial means.

Work undertaken by Mr Rippey on the family farm and in caring for his parents

[16] Mr Rippey submits that Judge Riddell failed to take proper account of the work he undertook on the family farm, and in caring for his parents, in assessing the extent of his moral claim on his mother’s estate.

[17] The benefits provided by a claimant child to the deceased in their lifetime are relevant to the extent of the claimant’s moral claim. A claimant’s contribution to a deceased parent may increase the moral duty to provide for that child, even at the expense of other children.⁵

[18] The extent of the work undertaken by Mr Rippey either on the family farm or in caring for his parents was a matter of some dispute. As a general observation, I note that the Judge had strong reservations about a number of aspects of Mr Rippey’s evidence, on a range of issues. She described his evidence on some issues as “muddled and contradictory” and also found him to be evasive and unconvincing in cross-examination. Some of his evidence (for example his denials of growing cannabis) were found to be simply not credible. As a result, when there was a direct conflict in evidence, the Judge generally preferred the evidence of other family members over that of Mr Rippey. I have carefully reviewed the relevant evidence and, in my view, her Honour’s credibility findings were sound.

[19] After the five children of the marriage had grown up and left home, Mr Rippey (who was then in his 20s) decided to return to the family farm to live. There was some dispute in the evidence as to whether this was at his parents’ request or on his own initiative. In any event, the expectation appears to have been that it would be a mutually beneficial arrangement. Mr Rippey would have the benefit of living rent free on the farm, while continuing to work elsewhere. Kenneth Rippey would have an extra pair of hands to provide help around the farm every second weekend or so.

[20] Kenneth Rippey and Mrs Rippey agreed to Mr Rippey building a Skyline garage on the farm, to be converted into a home. The garage was largely funded by Mr Rippey, with a modest contribution from his parents. It was built in 1982 and

[21] By the time Mr Rippey returned to the farm to live, it no longer operated as a working dairy farm (as it had been when the Rippey children were growing up). Instead, the land was leased out to third parties for grazing purposes. As a consequence the work required of the land owners was much less than it had previously been. It was primarily limited to day to day maintenance issues such as maintaining fences and keeping drains cleared. The lessees bore the responsibility for such things as care of stock, fertilising the land and so on.

[22] In 1988, Mr Rippey’s wife became seriously ill and he gave up his job to care for her and their two young children. He did this full-time for the next two years. During this period he did little or no work on the farm. After his wife’s health improved (in about 1990) he started to help out more around the farm. Mr Rippey never returned to the paid workforce and, since 1988, has been in receipt of a WINZ benefit. This was supplemented over the years with income from his cannabis operation (which may have generated as much as $20,000 to $40,000 income in some years).

[23] Once the farm was converted to a dry stock operation, most of Kenneth Rippey’s energy appears to have been focussed on the forestry block. In particular he had a passion for conservation and native trees and he planted many of these. In addition a number of pine trees were planted, mostly in the 1990s. Mr Rippey assisted with planting these and subsequently weeding and pruning them. John Rippey’s unchallenged evidence, however, was that Mr Rippey’s efforts in regard to the pine trees were of “limited effectiveness”. The trees were planted too far apart and were ultimately no good for timber, only for chipping into pulp.

[24] Mr Rippey’s evidence was that he worked on the farm for two to three days a week during the 1990s. From 2000 until 2006, following his father’s stroke, he was solely responsible for the farm.

[25] Mr Rippey’s siblings accept that he worked on the farm, although not to the extent claimed. On the contrary, they gave evidence that the relationship between Mr Rippey and his father was at times a troubled one, as Kenneth Rippey felt aggrieved that his son did not do much to help around the farm. On two occasions

he asked his other son, John Rippey, to talk to Mr Rippey and request that he help out a bit more. John raised the matter with his brother, who became upset. Mr Rippey’s sisters, Virginia Heta and Valerie Maisey gave similar evidence of their father expressing concern that Mr Rippey was not helping out much around the farm and was spending too much time “playing down the road” (apparently a reference to playing “pokies” in a nearby town).

[26] Although, in my view, Mr Rippey exaggerated the extent of the work he undertook on the farm, he clearly undertook more work than his siblings. As far as I am able to determine from the conflicting evidence, Mr Rippey probably helped out on the farm every second weekend (albeit not necessarily for two full days) during the period 1982 to 1988, during which time he worked full-time for the local Council. On his own evidence he did almost no work on the farm from 1988 to

1990. During the 1990s he helped out as required (although not perhaps as much as his father would have liked). In all probability he sometimes worked a couple of days a week, sometimes less.

[27] I take into account that the farm did not require much maintenance (and Kenneth Rippey did not maintain the farm to a high standard in any event). Further, most of the pine trees on the forestry block appear to have been planted in a single year, although work was required in subsequent years weeding and pruning them. From 2000 to 2006, however, more was required of Mr Rippey as a result of his father suffering a stroke in 2000. He may well have worked on the farm for a couple of days a week during this period (although not every week) in addition to generally keeping an eye on things.

[28] As Mr Rippey’s efforts in relation to planting and tending pine trees did not result in any significant financial return for the farm, he cannot claim that he has contributed in any significant way to the building up of his mother’s estate. Nevertheless his work on the forestry block cannot be disregarded, as the respondents suggest. It remains relevant to the moral duty owed to him by his

mother and he is entitled to appropriate recognition for it. As Gibbs J observed in

The claimant’s conduct does not cease to be relevant if it has not been of financial benefit to the testator – if, for example, the labour had been in vain. If the claimant has made sacrifices on the testator’s behalf, that is a circumstance to be considered even if no monetary saving of benefit for the testator resulted. Indeed, the very fact that a claimant has been a dutiful and devoted spouse or child is one of the relevant circumstances of the case to be considered together with all the other circumstances in deciding whether proper maintenance has been provided.

[29] Accordingly, although the Act does not allow for the Court to simply make provision from a deceased’s will in order to reward past services, the fact that a claimant has been dutiful or helpful to the deceased is a relevant factor in assessing the scope of the moral duty owed, and whether it has been breached.

[30] Mr Rippey provided family support to his mother and helped her with day-to- day tasks as and when she needed assistance. These do not appear to have been onerous as (apart from the fact that she did not drive) Mrs Rippey appears to have been largely self sufficient. Indeed most of her life appears to have been spent caring for others. Further, she often visited other family members, sometimes staying with them for months at a time.

[31] The level of care and support Mr Rippey provided to his father was a much more contentious issue. In June 2000, Kenneth Rippey suffered a major stroke which resulted in him being hospitalised for several months. He required a fairly high level of care on his discharge from hospital. Mr Rippey was initially unwilling to take on that responsibility, on the basis that his home was not suitable and his wife was chronically unwell. As a result, John Rippey took his father to live with him.

[32] About this time Mr Rippey learned, to his considerable distress, that he had been excluded from both of his parents’ wills. Shortly afterwards Kenneth Rippey somehow ended up in the care of Mr Rippey. How this happened was a matter of some dispute. Mr Rippey alleged that John Rippey left his father with him for a visit

and never returned to collect him. John Rippey says that Mr Rippey refused to return his father to his care after a visit to the farm. When the relevant events are viewed in their broader context, it is my view that John Rippey’s version of events is the more credible.

[33] Firstly, it appears to be somewhat of a coincidence that, very soon after Mr Rippey learned of his exclusion from his parents’ wills, he assumed the care of his father. This was despite his earlier strong protestations that his home was not suitable and he was already fully committed to caring for his wife. Further, Mr Rippey then made arrangements for his father to see a lawyer within a matter of days, without Mrs Rippey being present (despite the couple having mirror wills). The result was that, on 17 October 2000, Kenneth Rippey changed his will. His new will included Mr Rippey as a beneficiary. Kenneth Rippey also appointed Mr Rippey as an executor of his will, as well as his enduring power of attorney (personal welfare). Mr Rippey and his sister, Pamela Hunt, were appointed as his

[34] The appointment of powers of attorney, following a stroke, was obviously a prudent move. Kenneth Rippey’s changes to his will to include Mr Rippey, at a time when he was in Mr Rippey’s care, raises a few more questions. The apparent lack of transparency around the process within the wider family (including Mrs Rippey) seems surprising. Perhaps even more surprising is that, by the end of October 2000 (while he was still in Mr Rippey’s care) Kenneth Rippey had transferred the ownership of the larger farm block, which had been held by him and his wife as joint tenants throughout their almost 50 year marriage, into a tenancy in common. The only person who would appear to benefit from such a change in ownership structure is Mr Rippey, in the event that his mother did not also change her will. That is because the legal impact of the change was that, in the event of Mr Rippey predeceasing his wife (which at the time must have seemed likely) Kenneth Rippey’s interest in the larger farm block would remain the property of his estate, rather than pass to his wife by survivorship.

[35] Whether or not Mr Rippey exercised undue influence over his father at the time of these events is not a matter I am required to determine in these proceedings. It is relevant for present purposes, however, that Mr Rippey’s care of his father during this period does not appear to have been entirely altruistic. In my view it was motivated in part (and probably in large part) by his concerns regarding his exclusion from his parents’ wills.

[36] In any event, after about three months of living with Mr Rippey, Kenneth Rippey moved back into the family home in early 2001, which had by then been rebuilt. Mr Rippey’s evidence was that although his father was back living in the homestead with Mrs Rippey, he provided “daily oversight” until 5 March 2002 when Kenneth Rippey was placed in a rest home. Mr Rippey’s wife’s evidence was that Mr Rippey spent all day at the homestead during that period, but the siblings disputed that. One of his sisters, Valerie Maisey, deposed that the support provided by Mr Rippey during this period comprised helping his father for a short time each morning and evening, with their mother attending him the rest of the time.

[37] In my view Mr Rippey’s care of his father during this period probably fell somewhere between these two extremes. His father required assistance with many things, including bathing and toileting and also being transferred in and out of bed. Mr Rippey likely visited his father twice each day to assist with these tasks. He therefore played an important role in caring for his father during the year or so he remained in his own home before being admitted to a rest home in March 2002.

[38] Kenneth Rippey remained in the rest home until 2006. Mr Rippey’s evidence was that he brought his father home for one week in every month while his father was in the rest home. The Judge found that claim to be incorrect. Rest home records referred to by Mr Rippey’s siblings showed nine home visits in 2004, six home visits in 2005 and only two in the eleven months of 2006 prior to his discharge. There was no indication that those visits were necessarily to Mr Rippey’s home. Presumably he stayed in the homestead, with some support from Mr Rippey.

[39] Kenneth Rippey was unhappy in the rest home. Late in 2006 the siblings arranged for his discharge. He was subsequently cared for in the family homestead

by his daughter Virginia Heta, who moved there with her husband and family, specifically to look after her father. That arrangement continued for three years, until Kenneth Rippey’s death on 26 November 2009. Mr Rippey, who was still living on the farm, visited his father about once a week during that period.

[40] The Judge criticised Mr Rippey for not spending enough time with his father in the last three years of life, given that his father had gifted a very significant sum of money to him on the understanding that Mr Rippey “would always care for him”. The Judge observed that:

Despite that apparent promise, the applicant conceded he saw his father only once a week in the last three years of his father’s life. That was despite both parties still living in close proximity on the family farm.

[41] Accordingly, in summary, the care Mr Rippey provided to his parents appears to have been as follows:

(a) Mr Rippey provided some support to his mother and helped her with day-to-day tasks as needed. His mother was, however, largely self sufficient and did not require a high degree of care.

(b) Mr Rippey provided his father with personal care and support following his stroke in June 2000. His father lived with him for three months in late 2000/2001, although Mr Rippey’s care of his father during that period appears to have been motivated in part by self- interest. During the following year, after Mr Rippey had returned to the homestead to live, Mr Rippey provided daily support to his mother in her care of his father.

(c) Mr Rippey brought his father home from the rest home for periodic visits during the period 2002 to 2006. The visits, however, were much less frequent than Mr Rippey claimed and it seems likely that Kenneth Rippey stayed at the homestead during these visits (albeit with support from Mr Rippey).

(d) During the final three years of Kenneth Rippey’s life his primary support person was his daughter Virginia Heta, who had moved into the homestead with her family to care for her father. Mr Rippey’s “support” during this period was limited to visiting his father about once a week.

[42] The focus of this case is on the extent of Mrs Rippey’s moral duty to her son. In that context any care he provided to his mother (which was fairly minimal) must carry greater weight than the care he gave to his father. Presumably the care Mr Rippey provided to his father may feature in separate litigation which is apparently on foot regarding Kenneth Rippey’s estate. In the context of these proceedings, however, the care Mr Rippey provided to his father is relevant to the extent that, in helping care for his father, Mr Rippey provided indirect assistance to his mother..

The effect that making testamentary provision for Mr Rippey would have on the ownership of the family farm

[43] As I have noted above, the Judge noted that, if testamentary provision were made for Mr Rippey, this would likely require the farm (or part of it) to be sold. Unlike his siblings, he would prefer to receive any bequest in cash. The Judge noted that the land is very important to Mr Rippey’s siblings, who are Maori (Mrs Rippey was Maori, but Kenneth Rippey was not). They wish to retain it for future generations.

[44] Mr Rippey submitted that the Judge erred by taking into account the ownership of the family farm in deciding whether Mrs Rippey’s moral duty to him had been breached. He submitted that there was no evidence that Mrs Rippey or Kenneth Rippey wanted the farm to be retained for future generations. If this had been a concern for them they could have placed the property in trust to ensure such an outcome.

[45] I accept Mr Rippey’s submissions on this issue. Mr Rippey’s intentions regarding his potential share of the estate were not relevant to an assessment of the extent of Mrs Rippey’s moral duty to him and whether it had been breached.

Did Mr Rippey use his own personal resources to purchase goods or services for the farm?

[46] The fact that Mr Rippey was gifted very significant sums of money by his father during his lifetime was a key factor underpinning the Judge’s conclusion that any moral duty to Mr Rippey had been discharged by gifts and other benefits he received during his parents lifetimes.

[47] Mr Rippey says that the Judge over estimated the benefits he received, because she erred in concluding that he had not spent some of his own personal resources in purchasing farm equipment. The reality, Mr Rippey says, is that the farm and family finances were intermingled.

[48] There was little or no corroborating evidence for Mr Rippey’s claim that he has spent his own resources on buying equipment for the farm (although I note that it does not appear to have been in dispute that Mr Rippey met most of the costs of building the Skyline garage). Mr Rippey said that he did not keep a precise record of his expenditure because he did not believe it would be necessary.

$3,200 was apparently spent on chainsaws according to Mr Rippey... I do not accept that Mr Rippey spent money gifted to him by his father for purchase of farm equipment when one would expect the farm to meet that cost.

$2,500 for a driveway ... Again the cost of a driveway would have been borne by the farm and so I am disinclined to accept that amount was paid by

[50] I see no basis for departing from the Judge’s factual finding that the relevant costs were borne by the farm and not Mr Rippey personally. There is no documentary evidence to point to a different conclusion. Given the Judge’s findings regarding Mr Rippey’s credibility and veracity, and the lack of corroborating evidence, it was open to her to conclude that Mr Rippey’s claims in this respect were incorrect.

[51] Following Kenneth Rippey’s admission to a rest home, Mr Rippey received (on his own admission) “gifts” totalling $225,000 from his father. In my view that figure may well have been conservative. I have carefully reviewed Mr Rippey’s evidence on the topic. It is confused and contradictory. Minimal supporting documentation (such as bank statements for the relevant accounts) was provided. John Rippey’s analysis of Mr Rippey’s affidavits and their attachments suggested that there could have been as much as $360,000 transferred from Kenneth Rippey to Mr Rippey following Kenneth Rippey’s stroke. The siblings squarely put in issue, in their own affidavits, their concerns as to the precise sums Mr Rippey had received from his father. They sought clarification of the issue. Despite filing a relatively detailed reply affidavit, Mr Rippey effectively sidestepped engaging with this issue in any detail.

[52] Judge Riddell was left with making the best assessment she could out of the contradictory and inadequate evidence presented by Mr Rippey. Ultimately she accepted Mr Rippey’s final evidence (which changed over the course of his affidavits) which was that he had received a total of $225,000 in gifts from his father. Although I suspect that figure is conservative, I will also assume a figure of

$225,000. Like Judge Riddell, I find it impossible, on the inadequate evidence before the Court, to more accurately quantify what the precise amount Mr Rippey received from his father might have been.

[53] The sum of $225,000 comprises three main “gifts”, each of them made shortly after Kenneth Rippey’s admission to a rest home. First, he gave Mr Rippey

$50,000, which Mr Rippey said was in exchange for his promise to look after his father. Six months later Kenneth Rippey transferred the balance of his life savings to his son. In his final affidavit Mr Rippey confirmed that this sum was $155,000 (having stated in an earlier affidavit that it was $130,000). His evidence was that Kenneth Rippey told him he was going to close his savings account and give it all to him “as he did not want any of the other family to have it”. Elsewhere in his evidence, however, Mr Rippey gave a somewhat different (and I suspect more accurate) explanation for the transfer of the funds to him. He said that the intention

was to use the money to care for his father and eventually divide it between the family. I note that the money was transferred to Mr Rippey’s control relatively soon after Kenneth Rippey entered a rest home. This raises the possibility that another motive for the transfer of funds was to avoid them being dissipated on rest home fees.

[54] In addition to the cash gifts of $205,000, Kenneth Rippey gave Mr Rippey a further gift of $20,000, to enable him to purchase a motorbike. Mr Rippey’s rather unconvincing evidence in relation to this gift was that he did not particularly want a motorbike, but his father insisted on giving him one.

[55] Mr Rippey took his father, who at the time was wheelchair bound and had difficulty speaking, to the bank to arrange the various transfers. The money was transferred from Kenneth Rippey’s accounts into Mr Rippey’s son’s bank account. This was done to avoid drawing the attention of WINZ, given the possibility that Mr Rippey’s benefit entitlement might be affected by such significant “gifts”. The net effect of the various transfers was to transfer the entirety of the life savings of Mr and Mrs Rippey Snr (which were in accounts solely in the name of Kenneth Rippey) into Mr Rippey’s control.

[56] Mr Rippey claimed that he spent much of the money given to him by his father for “family expenses”. In particular, he said the money was spent as follows:

(a) $2,000 (at his mother’s request) to help a South African boy who lived on the farm for a while;

(c) $1,500 penalties on a loan for which his mother had been guarantor; (d) $3,200 for two chainsaws purchased for work on the farm;

(e) $20,000 spent on the time that his father was in the rest home, on the basis his father lived with him for one week out of each month;

(f) $20,000 given to his mother over a two year period when she would ask for money;

(g) $20,000 set aside as funeral costs, $14,000 of which was later spent repaying a loan for which his mother was guarantor;

(i) $50,000 described in the first affidavit as coming from the $130,000 gifted from his father which was “divided between the family (my brother and sisters and my mother). The $50,000 became available to share amongst the family because my father’s rest home costs became subsidised by the government”.

[57] Judge Riddell determined that the amount Mr Rippey paid for family expenses was, at best, $90,168.63. The relevant portion of her decision is as follows:

Some assistance to a South African boy who stayed with $ 2,000.00 the family for a time

[58] As I have noted above, her Honour found aspects of Mr Rippey’s evidence muddled and contradictory and expressed the view that he was “evasive and unconvincing” under cross-examination. Mr Rippey provided little or no documentary evidence to support his expenditure claims. He conceded under cross-examination that, in respect of the biggest item of expenditure claimed

(rest home fees of $70,000) the more likely figure was $35,000, as he had not taken into account the rest home subsidy in his calculations. Further, the claim that his father had spent a week a month with him during the time he was in the rest home (in respect of which Mr Rippey claimed $400 per visit) was found to be incorrect and not supported by rest home records.

[59] In my view the Judge made a relatively minor error in relation to the gifts to

Mr Rippey’s siblings and mother. The relevant evidence was that Mr Rippey gave

$7,000 to each of his four siblings and his mother (and kept $7,000 for himself). When challenged as to what had happened to the $8,000 balance, Mr Rippey asserted that he actually gave two lots of $7,000 to his mother. I do not accept that evidence and find Mr Rippey’s original evidence more credible, which was that he gifted a total of $35,000 to his siblings and mother (5 x $7,000). On that basis the total sum Mr Rippey expended on family expenses was $85,168.63 rather than

[60] The onus was on Mr Rippey to substantiate his claims of expenditure, but he provided little supporting evidence (for example bank records) to assist the Court in its difficult task. Nevertheless, Judge Riddell carefully analysed the evidence that was available in relation to each item of claimed expenditure. The Judge’s factual findings, with the one minor exception I have referred to, were well open to her on the evidence. Her decision was carefully reasoned and I see no error (other than the one I have noted) or other reason to depart from her analysis. Accordingly, correcting the error I have identified, Mr Rippey spent $85,168.63 of the $225,000 he received from his father on family expenses, using the balance of $140,000 for his own purposes.

[61] Mr Rippey submits that Judge Riddell erred by minimising the assistance that his siblings had received from their parents. As a result, he submits, it appeared that he had received far more assistance from his parents than his siblings did and therefore a lesser moral duty was owed to him.

Mr Rippey claimed that a number of gifts and some financial support were given to other siblings by their parents. Each of the beneficiaries denied that in their evidence and they were not cross-examined about that to any extent. Each described loans made and repaid, a wedding largely paid by the couple themselves and they refuted claims of gifts.

[63] In addition, as the Judge acknowledged elsewhere in her judgment, each of the siblings received $8,000 (actually $7,000) from the funds Mr Rippey had been given by Kenneth Rippey. Mr Rippey asserted that various other “benefits” had been received by his siblings that should have been taken into account, namely:

(a) Valerie Maisey and her family returned to the farm for a period of time and this was rent free.

(b) Virginia Heta and her family returned to the farm in 2006 and for the most part has not paid rent.

(d) Pamela’s first two children were cared for by their grandparents and she only paid child support for one of them. Pamela also received an interest free loan. Pamela also returned to the farm as an adult to stay and lived rent free for a short while.

[64] The siblings outlined in some detail in their evidence what gifts and financial support they had received from their parents, which were minimal. Further, it is untenable to suggest that Virginia Heta and her family should have paid rent when they returned to live on the farm in 2006. The sole purpose of her return to the farm was to look after her frail and elderly father, enabling him to be discharged from the rest home and spend his final years at home, in accordance with his wishes.

[65] As for Mr Rippey’s sister Pamela Hunt, the child that Mr Rippey suggests she should have paid maintenance for was born when she was 14. Her parents appear to have effectively raised that child as their whangai child, in accordance with traditional custom. It is unrealistic to expect that Pamela Hunt should have paid

child support in such circumstances. I strongly doubt that this was ever requested or expected.

[66] Relative to the benefits received by Mr Rippey, any benefits received by his siblings were minor. The Judge did not err, in my view, by not giving greater consideration to the benefits received by Mr Rippey’s siblings over the years from their parents.

Was the financial assistance provided by Kenneth Rippey to Mr Rippey relevant?

[67] The Judge, in assessing whether Mrs Rippey had discharged her moral duty to Mr Rippey, took into account the net sum of $135,000 (which I have found was actually $140,000) that Mr Rippey had been given by his father, and used for his own purposes.

[68] On appeal, Mr Rippey submits that the Judge should have disregarded that sum on the basis that “the moral duties of each parent are separate and that... Mr Rippey did not receive anything significant from Mrs Rippey herself”. Mr Rippey argues that his mother’s contribution was limited to allowing him to build a home on the family farm and live in it rent free, as well as allowing him to use some farming equipment for his own purposes. Such a contribution was said to be insufficient to discharge her moral duty to her son.

[69] In my view such an argument is entirely without merit. Mr and Mrs Rippey each only married once. They married young (Mrs Rippey was 20 and her husband a few years older) and together raised five children and numerous foster children. Together they built up the farm, part of which was owned by Mrs Rippey solely (having been a gift from her father). They initially operated it as a dairy farm and later for dry stock. Neither spouse appears to have had any significant assets prior to their marriage.

[70] Although their marriage was clearly a “traditional” one in many respects, and their roles reflected that, they were very much a team. Kenneth Rippey, however, appears to have controlled most of the finances and most or all of the couple’s

savings were held in accounts in his sole name. That money had, however, been accumulated by the couple during the 50 years or so that they had owned and worked on the farm. Although Mrs Rippey may have had her own bank account, any personal savings were clearly minimal. For example she had no ability to meet a demand for about $13,000 in respect of a loan she had guaranteed on behalf of a family member. The couple’s savings, although held in bank accounts in Kenneth Rippey’s name, were clearly relationship property.

[71] Whether or not Kenneth Rippey was unduly influenced by his son in transferring the couple’s life savings to him, the lack of transparency within the family around the transfer is a matter of some concern, particularly given that the making of such large gifts appears to have been entirely out of character.

[72] Despite now arguing that these “gifts” are irrelevant to any consideration of whether his mother’s moral duty to him has been discharged, in his own affidavit evidence Mr Rippey acknowledged his mother’s moral claim to the money. For example, Mr Rippey deposed in his affidavit of 8 September 2011 that:

I felt sorry for my mother as I truly believed that she was entitled to this money and she was also helping me care for my father. Once I told my mother she would always ask for money. Over the next two year period I gave her about $20,000. I couldn’t refuse, because really the money which Dad had given me I always thought belonged to my mother as well.

[73] The Judge rejected Mr Rippey’s claim that he had given his mother $20,000 or so in cash. However, even if he had, such a sum would represent less than 10 per cent of his parents’ life savings, and only one-seventh of the sum ($140,000) Mr Rippey spent for his own purposes. This is somewhat surprising, given Mr Rippey’s acknowledgement that his mother was entitled to the money.

[74] Ultimately, despite Kenneth Rippey having had over $200,000 in savings accounts in his name in 2002, by the time of his wife’s death in 2008 there was no money left to pay for her funeral. Mrs Rippey’s funeral expenses were met by her children. Nor was there any money to pay for Kenneth Rippey’s funeral the following year – that was paid for out of the farm account.

[75] Neither of Mr Rippey’s parents were particularly well off in their final years, a time when the savings they had accumulated over their lengthy marriage could no doubt have been put to good use, particularly given the high level of care that Kenneth Rippey required. This must have put a lot of pressure on both his wife and his daughter Virginia Heta, who cared for him in his final years. Money appears to have been fairly tight and Mrs Rippey had to save in order to take a trip to Australia to visit her sisters for a final time. Other family members chipped in to help her with personal expenses such as dentures, spectacles and new clothes and furniture. The fact that Mr Rippey spent the majority of his parents’ life savings for his own purposes, rather than on his elderly parents’ welfare, must necessarily have an impact on the extent of his moral claim on his mother’s estate.

Did Mrs Rippey breach her moral duty to Mr Rippey, by failing to make provision for him in her will?

[76] I have addressed above each of the specific errors that Mr Rippey alleges were made by the Judge. In most cases I have agreed with the Judge’s findings on a particular issue and concluded that no error was made. In relation to a couple of issues I have reached a different conclusion to the Judge. Taking all of my findings into account I now stand back and consider the ultimate issue. With reference to all of the evidence before the Court, did Mrs Rippey breach her moral duty to Mr Rippey by failing to provide for him in her will?

[77] Mr Rippey was not estranged from his parents and appears to have had a fairly normal parent/child relationship with his mother during her lifetime. He has lived on his parents’ farm, in relatively close proximity to them, for most of his adult life. He is currently in his 50s and has been on a WINZ benefit since 1988, although he has also received additional income from growing and dealing in cannabis and various cash payments (for example lease payments) over the years. He currently appears to have no savings and limited assets. Any gifts he received from his father in 2002 or subsequently appear to have been spent. There was a fairly strong suggestion that this may be attributable to a gambling habit (playing the pokies) but it is not necessary in my view to determine whether that is so.

[78] Although, in my view, Mr Rippey somewhat exaggerated the work he undertook on his parents’ farm, it is clear that he did undertake work on the farm to the extent I have summarised at [26] above. He is entitled to recognition for that.

[79] In addition, Mr Rippey provided some support to his mother over the years, but this does not appear to have been unusual or onerous. Mrs Rippey appears to have been largely self-sufficient and spent most of her life caring for others. Mr Rippey provided significantly more care and support to his father, as I have summarised at [41] above. This is at least indirectly relevant to his moral claim on his mother’s estate (apart from any relevance it may have in separate proceedings involving his father’s estate) to the extent that, in helping care for his father, Mr Rippey provided indirect support to his mother.

[80] Against these factors, I take into account that, as a result of living on the farm, Mr Rippey’s living costs were very low. He has received free rent for

“reasonably minimal rate”. Averaged over the relevant period that equates to about

$76 per week. In addition, Mr Rippey received cash payments from lessees of the farm intermittently (which it was not possible to accurately quantify) and other non-financial benefits (free insurance, rates, water, firewood and use of farm property). Mr Rippey also had a profitable sideline business growing cannabis on the farm and selling it. In the early years this possibly generated as much as $20,000 to $40,000 per annum in income, but the operation appears to have been scaled back in later years. Finally, Mr Rippey received the net sum of $140,000 in “gifts” from his father, following his father’s stroke. This comprised the remaining balance of his parents’ life savings.

[81] The law recognises the principle of testamentary freedom. There is no guaranteed right of inheritance for any member of a deceased person’s family, and certainly no presumption that all children must be treated equally. There is no “assumption” that Mr Rippey is automatically entitled to a one-fifth share of his mother’s estate, unless there are good reasons to the contrary. As has been recognised since the inception of the Act, the role of the Court is not to “remake” a deceased person’s will, but only to disturb it to the minimum extent necessary to

address a breach of moral duty, if one has been established. Whether there has been such a breach will turn on the particular circumstances before the Court. The test is not one of “fairness”. If there has been no breach of moral duty a Court will not intervene, even if a will otherwise appears to be “unfair” to an objective bystander.

[82] A factor that clearly weighs in Mr Rippey’s favour is that he is not well off financially. He has, however, had a significant “leg up” from his parents over the years for the reasons outlined above. Accordingly Mr Rippey must himself take primary responsibility for his current financial situation. Although Mr Rippey’s level of financial need is a relevant factor, it cannot be determinative, particularly in circumstances where he has received very significant cash sums from his parents in recent years, which appear to have now all been spent.

[83] Mrs Rippey was clearly of the view that, as at 1990 when her will was made, her moral duty to Mr Rippey had been discharged as a result of the support she had given him over the previous eight years and would continue to make available in the future. Ultimately, by the time of Mrs Rippey’s death, he had received the benefit of a further 19 years of living rent free on the farm, with the various other benefits that also entailed. He had also received gifts from his father comprising, in effect, the entire balance of his parents’ life savings.

[84] It is not necessary for me to determine in these proceedings the extent (if any) to which Mr Rippey may have exercised undue influence over his father in relation to the various gifts he received from him. It cannot be entirely overlooked, however, that the gifts were made in somewhat questionable circumstances, which at the very least lacked transparency within the broader family context. Further, although Mr Rippey acknowledged in evidence his mother’s equal entitlement to the savings held in his father’s bank accounts, very little of those savings appear to have actually been spent on her. It is not a sufficient answer to any criticism for Mr Rippey to simply assert that his father wanted him to have that money. As Mr Rippey himself acknowledged, the money was as much his mother’s as his father’s. The fact that Mr Rippey spent the majority of his parents’ life savings on himself, rather than on his elderly parents’ welfare, must necessarily have an impact on the extent of his moral claim on his mother’s estate.

[85] The exclusion of Mr Rippey from his mother’s will was not capricious or the result of any temporary estrangement. On the contrary, the parties appear to have had a fairly normal parent child relationship. Mrs Rippey’s decision to exclude her son from her will was a deliberate and carefully considered one. She expressly recorded her reasons in clause 3 of her will, as follows:

I DIRECT that my Trustees take into account that I have excluded my son PAUL PIAHANA RIPPEY from the terms of this my Will because he has been supported by me for a period of not less than nine years prior to execution of this my Will and will continue to receive these benefits at his option in the foreseeable future.

[86] Mrs Rippey received legal advice in relation to the issue. A letter from her solicitor in November 1989 (some two months before the will was executed) noted Mrs Rippey’s instructions that she had exclude her son Mr Rippey from her will because she had supported him for a number of years, without any payment. Mrs Rippey was advised that Mr Rippey would be able to bring a claim under the Act and that she should therefore make her reasons for her decision clear in her will. The solicitor enclosed a draft will, noting that “if you feel that the wording of the will in regard to the exclusion of Mr Rippey is inappropriate please advise and that can be altered”. The will was executed just over two months later, with clause 3 included.

[87] As Judge Riddell noted, Mrs Rippey had ample opportunity to change her will in later years, but chose not to do so, “despite the significant pressure of numerous conversations about it with Mr Rippey”.

[88] The ultimate test is not fairness, or whether Mr Rippey has received benefits equating to a precise one-fifth share of his mother’s estate, but breach of moral duty. I share the Judge’s view that, although Mrs Rippey owed a moral duty to her son, that duty was discharged in her lifetime via gifts and other support Mr Rippey received from his parents. As the Judge put it, “that support was manifested in innumerable ways, support which was not available to other family members”. To the extent that I have reached a different view to the Judge on several issues (for example the impact that making a provision would have on ownership of the

farm) those matters do not appear to have been given particular weight in the Judge’s overall analysis. My different conclusions on those issues do not alter the outcome.

[89] I am satisfied that, taking all of the evidence into account, there was no breach of moral duty that requires intervention by the Court to correct.

[90] Section 5(1) of the Act entitles the Court to refuse to make an order in favour of any person whose character or conduct is or has been such as in the opinion of the Court to disentitle him to the benefit of such an order. Conduct not actually disentitling a claimant to further provision under s 5(1) may still have some bearing on the quantum of the further provision ordered. It is recognised that, as the moral duty is judged as at the date of death, the enquiry as to disentitling behaviour should be judged at the same date.

[91] As I have noted above, the Judge concluded that there had been no breach of moral duty. She further concluded that, even if she were incorrect in that assessment, the extent of Mr Rippey’s cannabis operation was sufficient to disentitle him from any share in his mother’s estate. Mr Rippey’s cannabis growing activities were illegal and he was challenged about it by family members “yet wilfully elected to continue in the face of family opposition”. She found that Mr Rippey had made money from that operation against his parents’ wishes and had continued to do so “wilfully and deliberately in the knowledge that not only his parents but his siblings disapproved”.

[92] Mr Rippey submits that Judge Riddell erred in fact and in law in placing too much emphasis on disentitling conduct and considering this when determining if a moral duty was owed. Given my conclusion that (even putting the allegations of disentitling conduct entirely to one side) there was no breach of moral duty, it is not strictly necessary to consider the issue of disentitling conduct further. I will, however, consider the issue briefly.

[93] Despite Mr Rippey’s initial denials that he grew or dealt in cannabis, he conceded under cross-examination that he did sell cannabis from time to time, albeit on a relatively small scale. He attempted to maintain his position, however, that he had not grown cannabis on the farm. Rather, he claimed, he only sold cannabis “from the plants he pulled out,” which had apparently been planted by someone else. His evidence on this issue entirely lacked credibility. I have no doubt that Mr Rippey grew cannabis on the farm and, at times, made a good income from his cannabis operation. Alan Maisey (his brother-in-law) said that Mr Rippey had told him he made $40,000 in one year from selling cannabis. The Judge found Mr Maisey to be a credible witness. The scale of the operation likely decreased from the 1990s onwards, following a large police seizure of cannabis in the area, but may well have continued right up until his parents’ death.

[94] If it had been necessary, however, I would have reached a different conclusion to Judge Riddell on whether Mr Rippey’s conduct in running a cannabis operation from the farm was, in itself, sufficient to disentitle him from a share of his mother’s estate. While both Mrs Rippey and Kenneth Rippey disapproved of their son growing cannabis on the farm, it is not clear that this was a major issue of contention in their relationship with their son. Indeed, on one occasion, Kenneth Rippey returned a bag of cannabis to Mr Rippey that another family member had found. There is no evidence that Kenneth Rippey took matters into his own hands by, for example, destroying cannabis plants when he found them or requesting his son to leave the farm if he would not desist from growing cannabis. Rather, Kenneth Rippey and Mrs Rippey appear to have somewhat reluctantly tolerated their son’s behaviour, albeit complaining about it from time to time.

[95] I have concluded that the Judge did not err in most of the ways alleged by Mr Rippey. Although I have differed from the Judge on several relatively minor issues, these do not affect the outcome. Taking into account all relevant factors, I have not been persuaded that Mrs Rippey breached her moral duty to Mr Rippey by failing to make provision for him in her will.

[96] The appeal is dismissed. If costs cannot be resolved between the parties, leave is reserved to file memoranda. Any memorandum on behalf of the respondents is to be filed and served by 8 August 2014, with any response from the appellant to

High Court of New Zealand Decisions

Rippey v Hunt [2014] NZHC 1694 (18 July 2014)