AB v RT AND ST [2015] NZHC 3174

AB v RT AND ST [2015] NZHC 3174 [11 December 2015]IN THE HIGH COURT OF NEW ZEALANDNELSON REGISTRYCIV 2013-442-306[2015] NZHC 3174UNDER the Family Protection Act 1955UNDER the Administration Act 1969BETWEEN ABPlaintiffAND RT AND STDefendantsHearing: 7-8 July 2015Counsel: I Hunt and C Light for PlaintiffD E Holloway for DefendantsG Downing for BeneficiariesJudgment: 11 December 2015JUDGMENT OF BROWN JTable of ContentsParagraph No.Introduction [1]Claim, defence and issues [6]Relevant principles [13]The facts [30]The plaintiff's perspective [31]A contrasting perspective [34]May to December 2008 [43]Conclusions on the evidence [61]Submissions of counsel [65]The plaintiff's case [65]Submissions of beneficiaries served [70]Analysis of the plaintiff's claim [75]Do the executors have personal liability for the award to the plaintiff? [99]Protection from liability under s 47(4) [99]A duty of even-handedness? [105]Following orders [113]Orders [115]Introduction[1] CD and EF, the mother and father of the plaintiff (AB), accumulated significant assets over many years.1 They had two children: the plaintiff and a son who died on 17 May 2004. EF died on 21 May 2008, leaving his estate to CD.[2] CD made her last will on 16 December 2008. She died on 7 October 2012 at Nelson. Probate was granted on 31 October 2012 to RT and ST, the executors named in the will as the administrators of CD's estate. The value of the estate is approximately $2.4 million.[3] CD's will made provision for a number of substantial bequests. The residueof CD's estate was left in equal shares to RT, and to the trustees of the inheritance trust of CD's granddaughter YZ. YZ is the plaintiff's daughter. RT and ST in combination received approximately $999,000, and YZ's trust received approximately $864,000. However the plaintiff received only $25,000.[4] Furthermore, the plaintiff was not advised of her bequest, or indeed of the fact of her mother's death, until six months following the grant of probate. On 6 May 2013 the solicitors for CD's estate, Glasgow Harley, wrote a letter to the plaintiff in the following terms:We are acting for the estate of [CD]. We have received instructions from the executors and trustees of the estate that in accordance with [CD's] very clear wishes, the estate was to be distributed six months after probate was granted, this period has now expired.Under the terms of [CD's] will you have been bequeathed the sum of $25,000, as one of 17 beneficiaries including three charities being Child Cancer, The Rescue Helicopter Trust and The NZ Foundation for the Blind.A letter from your daughter [YZ] is also enclosed, which the trustees advisenow completes your Mother's instructions to the trustees.The trustees are now intending to finalise distribution of the estate, inconjunction with the estate's accountant, following clearance of all taxrelated matters.We would be grateful if you could sign and return the enclosed receipt.1 This judgment is anonymised at the plaintiff's request. An order is made that there be no publication of her name or of any particulars that are likely to lead to her identification.[5] The accompanying letter to the plaintiff from YZ dated 1 May 2013 stated:I am only writing to you so that I can carry out Nana's wishes – which after her passing were the following.1. Nana (CD) passed away on the 7th October, 2012 after a brief period of illness ...2. I was asked by Nana after her passing to be a pallbearer at the private graveside service with her friends of many years. I was a pallbearer and attended her funeral.3. Probate was to be cleared next. This was attained.4. Marble vases were to be brought in from Italy to match the headstone and put in place permanently by a Monumental Mason. Nana also requested new bronze matching plaques for her and Granddad and for permanent silk flowers to be placed in the marble vases. This request has now been completed.5. Any property owned by Nana was to be turned into cash and held in trust by her Solicitor and Trustees until the legal requirement of six months had passed.6. Only then, was I asked by Nana to advise you by letter of herpassing and then only through Nana's lawyer when her will was tobe administered simultaneously.Now that Nana's instructions are in place as she requested, I send thisinformation to you in respect of her last wishes.Claim, defences and issues[6] On 17 October 2013 the plaintiff commenced the present proceeding under the Family Protection Act 1955 (the Act) against the executors. She asserted that CD had failed in her moral duty to make adequate provision from her estate for theplaintiff's proper maintenance and support. The beneficiaries were also served. There are no other competing claims from persons entitled to claim under the Act.[7] It was claimed that the executors had distributed nearly all of the estate before notifying the plaintiff of CD's death and that they had distributed a part of the estate prior to the date six months from the date of probate. Accordingly, the plaintiff also sought:(a) in a second cause of action, following orders under s 49(1) of the Administration Act 1969; and(b) in a third cause of action, an order that the executors are personally liable to pay her any amount awarded by the Court for her proper maintenance and support.[8] Section 47(4) of the Administration Act 1969 provides:(4) No action shall lie against the administrator or trustee by reason of his or her having distributed any part of the estate if the distributionwas properly made, in accordance with subsection (2) of section 48, by the administrator or trustee after the expiration of 6 months from the date of the grant in New Zealand of administration in the estate of the deceased, and before service on him or her of any application, and without notice in writing of any application or intention to make an application that would affect the estate, being an application to which this section applies.[9] The third cause of action contained the following assertion:18. The distribution was not properly made in accordance with section 48(2) of the Administration Act in that the defendants did not distribute the estate in accordance with the will. The defendants distributed part of the estate before the expiration of 6 months from the date of the grant of probate, ie before 30 April 2013. [10] The particulars cited three transfers of interests in real property on 30 November 2012, 8 February 2013 and 22 April 2013. In those circumstances, it was contended that the defendants were personally liable for the plaintiff's claimunder the Act.[11] In their statement of defence the executors stated that, with the exception of one transfer to RT and another beneficiary (which was a partial distribution), the particularised transfers represented the sale of assets, not distributions within the definition in s 46 of the Administration Act 1969. It was accepted that that partial distribution was made on 22 April 2013 (which was nine days prior to the expiry of the six month period) but that all other distributions were made on or after 1 May 2013.[12] The issues for determination in this proceeding are therefore as follows:(a) Did the bequest of $25,000 to the plaintiff amount to a failure by CD of her moral duty to make adequate provision from her estate for theplaintiff's proper maintenance and support?(b) If yes, what amount would sufficiently redress that breach of moral duty?(c) If an order is made in favour of the plaintiff, are the defendants personally liable for such sum?(d) Is the plaintiff entitled to following orders under s 49 of the Administration Act 1969?Relevant principles[13] The principles governing claims under the Act, including those made by children, are well-established. Claims are provided for in s 4(1):4 Claims against estate of deceased person for maintenance(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.[14] Little v Angus established a broad approach to determining claims under s 4. The Court of Appeal in that case emphasized the court's role in establishing whether a breach of moral duty existed in a particular case, and if so, what would be necessary to remedy it:2 The inquiry is as to whether there has been a breach of moral duty judgedby 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 the2 Little v Angus [1981] 1 NZLR 126 (CA) at 127.deceased's bounty are highly relevant. Changing social attitudes must havetheir 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 thetestator's death; but in deciding how a breach should be remedied regard ishad to later events [15] In Re Leonard the Court of Appeal noted that the inquiry was necessarily holistic and that the required breach must go beyond mere unfairness:3 The question of whether the testator was in breach of his moral duty to his daughters as claimants on his bounty must be determined in the light of all the circumstances and against the social attitudes of the day. Mere unfairness is not sufficient and it must be shown that in a broad sense the applicant has need of maintenance and support. But an applicant need not be in necessitous circumstances: the size of the estate and the existence of any other moral claims on the testator's bounty are highly relevant and dueregard must be had to ethical and moral considerations, and to contemporary social attitudes as to what should be expected of a wise and just testator in the particular circumstances.[16] However, the inquiry remains tethered to the requirement in s 4(1) that claimsare made for the "proper maintenance and support" of the claimant. Maintenance andsupport are seen as constituting two separate heads under which recovery may be claimed. The cornerstone statement of the test was made by Richardson P inWilliams v Aucutt:4 The test is whether adequate provision has been made for the proper maintenance and support of the claimant. "Support" is an additional andwider term than "maintenance". In using the composite expression, andrequiring "proper" maintenance and support, the legislation recognises that abroader approach is required and the authorities referred to establish that moral and ethical considerations are to be taken into account in determiningthe scope of the duty. "Support" is used in its wider dictionary sense of"sustaining, providing comfort". A child's path through life is supported notsimply by financial provision to meet economic needs and contingencies but also by recognition of belonging to the family and of having been an important part of the overall life of the deceased. Just what provision will constitute proper support in this latter respect is a matter of judgment in all the circumstances of the particular case. It may take the form of lifetime gifts or a bequest of family possessions precious to its members and often part of the family history. And where there is no economic need it may also be met by a legacy of a moderate amount. On the other hand, where the estate comprises the accumulation of the family assets and is more than sufficient to meet other needs, provision so small as to leave a justifiable sense of exclusion from participation in the family estate might not amount to proper support for a family member.3 Re Leonard [1985] 2 NZLR 88 (CA) at 92.4 Williams v Aucutt [2000] 2 NZLR 479 (CA) at [52].[17] In that case, a deceased's division of a large estate, estimated at almost $1 million, came under scrutiny. One daughter, Susan, was relatively well off and had been given a legacy amounting to 5 per cent (approximately $50,000). Her sister Christine required greater financial assistance and was awarded the residue of the estate. The High Court found that a serious breach of moral duty had occurred and itincreased Susan's award to 25 per cent of the estate in recognition of her overall position in the deceased's life.[18] However, the Court of Appeal allowed Christine's appeal from the High Court decision. It noted that the s 4 inquiry did not require a court to go behind the reasons for a deceased's differential treatment of his or her children. Instead, it was up to a claimant to prove that the provisions made in the will were inadequate for the purposes of maintenance and support. The Court of Appeal held that an increased award of $50,000 would recognize the moral duty owed to Susan. Williams v Aucuttis seen as an indication of the courts' more conservative approach to awards under s4.5[19] A similarly conservative approach was applied in Auckland City Mission v Brown where the claimant, the deceased's daughter, was of more modest means but was not in a state of financial need.6 The Court's reasoning suggested that an appropriate award should primarily ease the debts and liabilities of the claimant child:7We consider a wise and just testator would have ensured that [Inge and her family] had the means to acquire a more substantial house for the family debt free and to clear the loan [on the existing house] together with a sumto supplement their business income and provide a reasonably substantialcontingency fund 5 Nicola Peart (ed) Brookers Family Law – Family Property (online looseleaf ed, Brookers) at [FP4.04(1)(b)].6 Auckland City Mission v Brown [2002] 2 NZLR 650 (CA).7 At [45].[20] Where a breach of moral duty has been established, the quantum of the award involves a difficult value judgment:8 what is adequate and what is proper for maintenance and support are allrelative questions which the Court must determine in the circumstances of each case having regard to the size of the estate and the competing claims. It may be as difficult, as it is unwise, to attempt to state as a general principle where the line between duty and no duty is to be drawn. Each case in a sense calls for the making of a value judgment [21] The other difficulty is that the assessment does not easily give itself over to mathematical calculation. As Wild J has pointed out:9 Rather, my point is that what is "proper" maintenance and support in anyparticular case ultimately is a matter of judgment, and not of some mathematical or scientific calculation. It might yield a claimant 33 per cent of an estate, or 29 per cent, or 10 per cent [22] Several cases have emphasized the limited utility of relying on percentage quantums awarded in other cases. This is because claims under the Act do not proceed along a sliding scale. What amounts to proper maintenance and support in each case is a highly fact-specific inquiry within the context of the history and dynamics of each family. As Eichelbaum CJ observed in Re Pennell (deceased):10Before parting with the case I wish to comment on what I regard as the undesirable tendency in Family Protection Act cases of counsel placing before the Court numerous unreported first instance decisions where the circumstances of the claimants, the estate, or the awards are thought to bear similarity to the case before the Court. The making of an award under the Act involves a judicial discretion, to be exercised by the application of well established principles to the facts of the case. Access to unreported judgments now being a relatively simple matter, no doubt the temptation to scour the indices for such material is strong; but decisions should be cited for the principles they establish or support, not the view taken by other Judges on a particular set of facts. For my part, I gain little assistance from such exercises.[23] Thus, the quantum of an award must be justified not with reference to precedent, but with reference to principles relevant to the facts of the specific case.8 Re Leonard , above n 3, at 93.9 Worboys v Jones [2004] NZFLR 360 (HC) at [33].10 Re Pennell (deceased) (1991) 8 FRNZ 458 at 458.[24] Before concluding a review of the applicable principles, it is important to note two further provisions of the Act. The first addresses the conduct of an applicant:5 Terms of order(1) The court may attach such conditions to any order under this Act as it thinks fit or may refuse to make such 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.[25] The nature of the relationship between a deceased and a claimant is relevant. In this case, the relationship is between mother and child. Parent-child relationships understandably occupy a particularly important societal mantle. However the Court of Appeal noted in Flathaug v Weaver that for the purposes of claims under the Act, the actual nature of the relationship is more important than any abstract societal importance placed upon particular relationships:11[32] The relationship of parent and child has primacy in our society. The moral obligation which attaches to it is embedded in our value system and underpinned by the law. The Family Protection Act recognises that a parent's obligation to provide for both the emotional and material needs of his or her children is an ongoing one. Though founded on natural or assumed parenthood, it is, however, an obligation which is largely defined by the relationship which exists between parent and child during their joint lives.[26] Estrangement complicates the assessment of the moral duty owed by a deceased parent to a child. The need to provide proper maintenance and support is not extinguished by estrangement between a deceased and an applicant, despite the fact that the nature of the relationship has bearing on any award. An estrangementserves to reduce a deceased's moral duty but does not disqualify a claimant unlessthere are other very strong claims on a relatively small estate, or where the applicant has been guilty of disentitling conduct. This difficulty was articulated by Tipping J in Floris v Public Trustee of New Zealand:12Although I have held that the estrangement in the present case does noteliminate the deceased's moral duty to his children, it is relevant when one isconsidering quantum.11 Flathaug v Weaver [2003] NZFLR 730.12 Floris v Public Trustee of New Zealand HC Rotorua CP48-90, 25 September 1990 at 15.The myriad of circumstances coming under the general heading of estrangement represent a sliding scale. At one end the estrangement may arise as a direct result of disentitling conduct or out of circumstances which lead to a finding of no moral duty. At the other end of the scale the causes of the estrangement can support, indeed sometimes demand, a finding of breach of moral duty. They can also suggest an element of atonement in the quantum of the relief granted. In between those two positions the force and effect of an estrangement will obviously vary with the circumstances of each case: see Patterson pp. 54 and 55 and the cases there discussed. In the present case the estrangement is not disentitling, indeed it supports a moral duty; but in respect of quantum the inevitable loosening of the bonds must beweighed alongside the deceased's obligation to make some provision for hischildren and his evident intent to do so.[27] Unless a child is completely estranged from a parent or guilty of disentitling conduct, family recognition alone can give rise to a moral duty that must be recognised through a bequest from an estate.13 However, a parent's moral duty willnaturally be reduced where the relationship is intermittent.14 Where a relationship is particularly fractured, claims under the Act are therefore often the means by which aparent's moral duty to a child can be achieved. Additionally Hardie Boys J inCrosswell v Jenkins noted that the causes of the estrangement may be relevant to theCourt's assessment:15 The claim of a child from whom the deceased has had a long estrangement cannot be as strong as that of one with whom he has had a close relationship. On the other hand where the estrangement is of the deceased's making, either because he has actively brought it about, or because he has not exercised his particular ability and responsibility to heal it, the need and the moral duty are compelling. What the deceased has failed to do in his lifetime to accord recognition to his own family he ought to do in his will. And if he does not the Court ought to do it for him [28] However, Blanchard J in Williams v Aucutt warned that the courts must paysufficient deference to the deceased's testamentary freedom:16[70] It is not for the Court to be generous with the testator's property beyond ordering such provision as is sufficient to repair any breach of moral duty. Beyond that point the testator's wishes should prevail even if the individual Judge might, sitting in the testator's armchair, have seen the matter differently. As I have said, the Court's power does not extend to rewriting a will because of a perception that it is unfair. Testators remain at liberty to do what they like with their assets and to treat their children differently or to benefit others once13 Williams v Aucutt, above n 4.14 Flathaug v Weaver, above n 11, at [41]15 Crosswell v Henkins (1985) 3 NZFLR 570 at 575.16 Williams v Aucutt, above n 4.they have made such provisions as are necessary to discharge their moral duty to those entitled to bring claims under the Family Protection Act.[29] With reference to the testator's reasons, the Act permits a generous inquiry to be made of a wide variety of sources:11 Evidence as to deceased's reasons for dispositionsWithout restricting the evidence which is admissible or the matters which may be taken into account on any application under this Act, it is hereby declared that on any such application the court may have regard to the deceased's reasons, so far as they are ascertainable, formaking the dispositions made by his will, or for not making any provision or any further provision, as the case may be, for any person; and the court may accept such evidence of those reasons as it considers sufficient, whether or not the same would be otherwise admissible in a court of law.The facts[30] The plaintiff had been more or less estranged from her parents since the age of 21 when she married GB. Their only child, YZ, lives in Australia and is estranged from her parents. Although the facts of this case are not especially complex, the evidence for and against the claim disclosed dramatically different perspectives of the causes of the estrangement between the plaintiff and her parents.The plaintiff's perspective[31] Broadly, the plaintiff claims that she experienced a very difficult, isolated, and often abusive childhood at the hands of her parents. EF worked for the RNZAF but resigned when the plaintiff was five years old. He remained unemployed for the majority of her childhood and she describes him as being violent and reactive. CD was industrious and business-minded, but remained under the complete control of her husband. The parents were extremely controlling and both children were often forced to work long hours at CD's shop from a very young age. She says that they were not permitted to socialise with other children their age, and that they were often beaten for either minor transgressions or for no reason at all. She says that there were occasions when they were beaten so forcefully that CD kept them home from school. At some point EF began threatening them with firearms.[32] The plaintiff says that she left school at 15, and that she then left home for periods but returned. However, her parents continued to exercise a controlling influence over her. She became engaged to GB on her 21st birthday. Although her parents were initially supportive of the relationship, their attitude cooled once it became apparent that the couple were not receptive to any arrangements that would give the parents control over them. Indeed, the plaintiff deposed that EF threatenedto "fix her for good" if she married GB, from which she inferred that EF would kill her. CD and EF did not attend the wedding, they had no involvement with their granddaughter YZ, and the relationship has been one of estrangement since then.[33] Some minimal contact was achieved by post throughout the years. This largely consisted of letters between the plaintiff and CD about non-contentious subjects, or birthday cards, or gifts for YZ when she was born. There were also some visits in person but they were extremely intermittent and brief in nature. The plaintiff did not encourage any relationship between YZ and her grandparents when she was growing up. The plaintiff also says that she suffered a psychiatric breakdown in 1983 and that she has not worked since. There are suggestions that the breakdown had its roots in her treatment as a child.A contrasting perspective[34] YZ and RT paint a completely different picture of the deceased. They describe CD and EF as happy and loving parents, grandparents, and friends, who were devoted to their family and acquaintances.[35] YZ confirms that until the age of 15 she had minimal interactions with her grandparents. She did not have many memories of seeing them and was not provided with an explanation as to the state of the relationship. She was forbidden from contacting them. However, this changed during her teens while holidaying with family friends near her grandparents' home. The family friends arranged for her to spend an afternoon with her grandparents. She says that her parents reacted very angrily when they learned of the arrangement.[36] YZ left home at age 15 and has not maintained a close relationship with her parents since then. She says that her childhood was unpleasant and difficult, consisting of psychological abuse and violence. She also says that the abuse the plaintiff recounted in her affidavits was in fact the very abuse YZ herself had suffered at the hands of her parents. YZ suggested that the plaintiff had become confused.[37] In 2002 YZ re-established contact with her grandparents. She informed her parents of her choice and GB threatened to write her out of his will. She began exchanging letters with her grandmother and she says that they developed a very close bond. She encouraged a relationship between her grandparents and her own children and visited them from Australia in 2004, recounting the trip with extreme fondness. She said that her grandparents set up trusts and involved her in the process, because they did not want the plaintiff and GB to contest CD's will. She also went to stay with CD before her death to keep her company. After EF's death, YZ felt that her parents were more concerned about protecting the estate for themselves than anything else. She also said that her parents had visited CD before her passing to try and get her to sign over her finances to them.[38] RT's affidavit largely supports YZ's version of events. He is CD's cousin and was a friend of the family for many years. He says that the plaintiff had a very poor relationship with her parents, despite not living all that far away from them, and he notes that she has been estranged from her parents from the age of 21. Appended to his affidavit are documents including a letter (from 1969) and statements (from 2004) by EF and CD to the effect that the relationship had broken down, that the plaintiff was not a loving or caring daughter, and that she had deprived them of contact with YZ.[39] Conversely, RT provides positive recollections of EF and CD. He says that a bond had formed between their families and they often holidayed together. He entirely disputes the plaintiff's account of her childhood and parents, and says that he would never have allowed his own children to stay with EF and CD had such allegations been true. Finally, RT notes that he was granted power of attorney for CD, and he suggests that the plaintiff has not fully declared her financial interests.[40] The balance of the affidavits largely come from other beneficiaries under the will. The recurring themes in those affidavits are the positive and cherished relationships between the deponents and CD, as well as the strained nature of the relationship between CD and the plaintiff.[41] Evidence in High Court proceedings under the Act is given by affidavit and cross examination is generally discouraged.17 In the present case the Court is confronted with reasonably lengthy affidavits which contain a considerable amount of acrimonious and emotive material.[42] It is a difficult task in the face of that material to determine the true and complete picture, although contemporaneous documents assist in throwing light on particular events. The point can be usefully illustrated by a series of events in 2008 commencing with the death of EF and culminating in the execution of CD's last will.May to December 2008[43] The circumstances in which the plaintiff learned of her father's death echoedthe events relating to the death of CD. YZ's account of events was as follows:My grandfather died on 21 May 2008. [RT] rang to inform me and I flew to New Zealand where [RT] and [ST] picked me up from the airport and took me to their house. I stayed with Nana at [RT] and [ST's] house in . Iattended the funeral and shared being a pallbearer with Nana. I stayed for a few days then returned back to Australia. I waited for about two weeks so that Nana was more stable emotionally then wrote a brief letter to Mum and Dad informing them that grandfather had passed away.[44] GB responded by a letter dated 24 July 2008 which expressed the view that RT was keeping the plaintiff and GB away from CD "with ill intent so as to manilute (sic) her to gain a very large monetary benefit". The letter concluded:I am writing to you to make you aware of the situation that has now arisen since [EF] died because as there is your heritage and ours at stake unforttly (sic) there "Mongrels" around waiting and ready to swoop down and takeeverything when it is not theres (sic) to have.17 Re Meier (deceased) [1976] 1 NZLR 257 (SC) at 257-258. In the present case application was made and granted to cross examine RT.[45] YZ replied to her parents in a lengthy letter dated 14 August 2008 whichaddressed the issue of "heritage" and described RT as having been one of the truly supportive family members that CD and EF had had in their lives. Because of both its length and its contents I do not set out the letter in full but with reference to the issue of estrangement I note the following passages:This is the only letter that I will respond to you on this matter so I ask that you read this carefully then consider your actions over the past years. I honestly hope that you will allow Nana peace and dignity by respecting her (and Grandads) wishes.It had been made very clear for some time by Nana and Grandad that they had made a choice to separate themselves from the stresses that occur whenyou and Mum contacted them on rare occasion. Your recent contact with Nana was unwanted on her behalf and I wish you would desist in pursuing contact with her. Please think of Nana and her wishes, you owe her that respect!I was asked by Nana to relay the sad news of Grandads passing on to you but to only do it after the funeral was held, this was also Grandads wish, I did as I was asked to do.[46] The plaintiff and GB both suspected that that letter had not been written by YZ because her language and style is simple and conversational whereas thelanguage in the letter was quite different, for example "desist in pursuing contact".The plaintiff expressed the opinion that the letter was the start of a campaign by RT, supported by YZ, to undermine her contact with CD. Such contact would weakenRT's and YZ's positions as the main beneficiaries of CD's estate.[47] The plaintiff stated that she and GB continued to visit CD on a regular basis. She related an incident during one such visit towards the end of August 2008. A female neighbour of CD burst into the house and asserted that they had no right to be there, and that they should let CD go to bed.[48] RT painted a rather different picture:14. In 2008 after the death of [EF] I called at [CD's home] one morning to find [CD] highly distressed. She hadn't slept much fromworrying all night. I spent about 1½ hours with her. She was terrified that her daughter [AB] would arrive, pick her up, take her to the bank and ask that she withdraw funds. She asked me "[RT], how can I stop this?". [CD] and I then went to the Westpac Bank in and arranged for her bank account to require two signatures for a withdrawal. This way the bank would have to ring me for authority for [CD] to draw from her own bank account, giving [CD] peace of mind that she would not be made to do something which was not right in her eyes.15. On a previous occasion, she had told me that [AB] and [GB] had arrived late at night, without warning, and told her to sign documents giving them control of her property.[49] RT also related a very different version of the events of the evening of 5 October 2008.[50] According to the plaintiff, she arranged to take a special dinner to CD's hometo celebrate the plaintiff's birthday on 5 October 2008. She deposed that a pleasant meal was abruptly interrupted at about 8.30 pm by the arrival of RT, who raised with GB his letter of 24 July 2008 to YZ. The plaintiff claimed that RT asked them what they were doing in CD's house, what right they had to be there, and ordered them to leave. She also stated that RT said in a bragging manner that he had written theentire contents of YZ's letter dated 14 August 2008.[51] The diametrically opposed versions of that evening are further demonstrated by the competing accounts concerning the conclusion to the visit. The plaintiff'sevidence was that RT stormed out, yelling angrily that he would return in the morning. RT's evidence was that he asked the plaintiff and GB to leave, which they did, and that he stayed with CD until she was settled.[52] The plaintiff claimed that as a result of this incident she made an inquiry of Age Concern Nelson Inc (Age Concern). Mr Jim Davis visited the plaintiff and GB at their home. He explained that any complaint about RT's involvement with CDhad to come from CD, not the plaintiff. He telephoned the plaintiff some two weeks later and told her that CD seemed happy, that RT seemed "plausible", and that he would not be investigating the matter further.[53] RT's evidence concerning the engagement with Age Concern was as follows:Soon after that [AB] contacted Aged Concern to try to have me removed as Power of Attorney. Jim Davis of Aged Concern investigated and concluded that I should remain Power of Attorney for [CD]. I met with Jim Davis at from 9.30 am to noon on 15 October 2008. The parties present were Jim Davis, [CD], [RT] and [ST]. [CD] agreed to put down in writing during the meeting what future contact she wanted with [AB]: being only a birthday card exchange and exchange of calendars at Christmas (continuing their only contact in past years). This Statement also discussed funeral arrangements etc. This Statement was handed to Jim Davis once [CD] had completed it and Jim Davis read it back to [CD] before leaving. Jim Davis asked if he could send a copy to [AB]. CD said no, but was happy for Jim Davis to read the contents over the phone to [AB]. I understand that he did so and [GB] threatened Jim Davis over the phone. Jim Davis then rang me and asked if [GB] was a violent person. [54] Concerning the events of October 2008 YZ's evidence stated:A short time later in early October 2008, I rang Nana's house in and gotno response. I rang [RT] and [ST] and they told me Nana was there and I could speak to her. Nana told me that my parents had visited her at her house very late the previous night and tried to get her to sign a piece of paper saying that they could look after her financial interests.I was very upset after I spoke to Nana. I rang my parents. I spoke to myDad and told him that I didn't like what he had done. He said that he was doing it to protect Nana's finances and ensure that Mum and him would notlose what was rightfully theirs. He said that he wanted me to side with him and get [RT] removed from being Nana's Power of Attorney. I refused and Itold him to leave Nana alone.Shortly after, Nana told me that my parents had contacted Aged Concern to try to remove [RT] as her Power of Attorney. Nana told me that she had been asked to talk to Aged Concern and give her view on this matter as well as other matters. She told me that she had spoken to a man called Jim Davies and they spoke about a range of matters.Nana told me that Jim Davies wanted to speak with me. I rang Jim Davies. I answered Mr Davies' questions honestly and we had a long and frankconversation.Nana and I then discussed a lot of things that Aged Concern had brought up, including whether Nana wanted my Mum at her funeral, and who would tell my Mum when Nana had died. Nana told me her wishes. Aged Concern completed their investigation and left [RT] as Power of Attorney for Nana, a decision that I supported.Nana told me what she wanted me to do after she died. She told me that shedidn't want her Death Notice in the newspaper, only her close friends and me were to be informed of her death and asked to attend her funeral. She chose her pallbearers for her funeral with myself to be a pallbearer. Nana told me that she wanted me to be the person to inform my parents of her death and that I was to wait until the time the bequests were being paid before telling my parents.[55] The plaintiff said that she did not want to visit CD again after RT had burstinto the birthday tea at CD's house. However, she deposed that a few days after the birthday tea, GB called in to see CD to see how she was. They had a chat and CD gave GB a letter in her own handwriting. The letter, which was exhibited to theplaintiff's third affidavit, stated:This is a note to say [AB] & [GB] are welcome to come & visit me any time.CD[56] After receiving that letter the plaintiff started visiting CD again. However, this resulted in a telephone call from Mr Davis on 17 November 2008 who explainedthat he had a letter from CD recording CD's wishes that contact should be limited to the exchange of Christmas and birthday cards. The plaintiff then telephoned CD who, she said, reacted with shock and disbelief and was adamant that she had not written any such letter.[57] GB contacted Jim Davis at Age Concern in order to obtain a copy of the letter to which Mr Davis had referred. On 9 December 2008 Mr Davis wrote to GB as follows:Further to our telephone conversation, I have been in touch with [RT], who in consultation with [CD], have both asked me to refrain from sending you a copy of the letter which you requested.[RT] visited me in my office today to deliver this information.I have no option but to comply with their wishes.[58] Yet, on the following day CD sent a handwritten letter to the plaintiff and GB, which was exhibited to AB's third affidavit, in the following terms:Dear [AB] & [GB]I am at house & would welcome you both to come & spend some time with me.Love Mum[59] On or about 9 December 2008 RT accompanied CD to a doctor, apparentlyfor the purposes of assessing CD's capacity to amend her will.18 The doctor's letter which was apparently addressed to CD's solicitor stated:I saw this lady with her cousin and was asked to assess her capacity to make a decision to chaneg (sic) something in her will.I have seen [CD] a few times over the last few months an (sic) although she has a lot of support from her cousin physically, I think mentally she is very capable of making a decision and has the capacity to do this without feeling pushed into anything.[60] A letter dated 21 December 2008 which was sent to the plaintiff by courier signed by both CD and RT stated:Dear [AB]Once again we've had [CD] very upset ringing both Jim and myself in a distressed state having been apparently pressured by yourself for Visitation on Christmas Day.[CD] will be with my family for Christmas Day as has been the case for many years.Age Concern have advised both [CD] and myself that they have read yourMother's wishes 3 times of which you choose to ignore.Can I suggest you come to Nelson for a family discussion re future contact with your Mother to ascertain whether its possible to work together as a family or you give us no choice but to cease all contact.Please advise a suitable time to arrange the suggested meeting.Yours sincerelyCDRTConclusions on the evidence[61] The events that took place in 2008 are only a snapshot, albeit a revealing one, of a much longer period of troubled relationships. Indeed, CD lived for another three years and nine months.18 As noted above at [2], CD's last will was made on 16 December 2008.[62] Even with the benefit of cross-examination, I doubt that one could be confident that an entirely accurate conclusion could be reached as to what had transpired. Only CD could give an impartial account, and even her sympathies seemed to vacillate from time to time.[63] From my review of all the evidence, contradictory as it is, I have formed the following views:(a) Following EF's death and the way in which they learned of it, the plaintiff and GB became increasingly concerned about the future ofCD's estate.(b) The plaintiff and GB were deeply suspicious of RT and considered that he had influence over YZ.(c) Both RT and YZ considered that the plaintiff and GB were avaricious,and that their intention was to obtain control of CD's finances for their own benefit.(d) RT did indeed have some degree of influence over CD, but the extent to which she welcomed that or felt unable to resist it is impossible now to determine.[64] I do not consider that it is necessary to make any more detailed findings in order to undertake an assessment of the plaintiff's claim under the Act.Submissions of counselThe plaintiff's case[65] The submissions traversed the plaintiff's childhood, marriage andrelationship with her parents, noting in particular a letter (which was annexed to an affidavit of RT) from EF to the plaintiff on 30 November 1969, the flavour of which is captured by the following extracts:This note to you could be the last communication or recognition or connection with your mother and father, the outcome is in your hands that you will afforded. And so [AB] this is the last chance for you to make amends if you everwish a mother and father to recognise you.Continue your line of actions and not immediately make good your relationship with your parents and you are through for all times this last appeal is to you only, any delay will be too late.The letter was described as a candid view into history, and it was submitted that the relationship did not improve subsequent to it.[66] It was contended that it was unlikely that CD did not want her daughter to attend her funeral. Further, the reasonable conclusion to be drawn from the manner in which the plaintiff was informed of CD's death was that the defendant executorsand YZ took those steps in their own self interests, in an attempt to ensure that any proceeding under the Act would be either frustrated or unsuccessful. Consequently, it was submitted that a question arose over whether the executors were in breach of duties they owed to the plaintiff as a potential claimant to act independently and without conflict in light of the very substantial provision made for them by CD.[67] Attention was drawn to the plaintiff's mental illness and its effects.Reference was made to the affidavit of a clinical psychologist who concluded thatthe plaintiff's childhood involved severe and cruel traumas, and that it had much to do with her lifelong difficulties and the disruption of her family bonds. A submission was made that a wise testator would have taken this consequence into account.[68] The following factors were contended to be relevant in the assessment of whether CD had breached her moral duty to AB:(a) The size of the estate was approximately $2.4 million.(b) CD's primary obligation was towards her only surviving child, and one per cent of such a large estate was a manifest breach of moral duty.(c) The large provision for the grandchild was "salt in the wound".19(d) Even though CD was not herself the abusive parent she knew of the abuse, and there was a consequent moral duty on her to remedy the harm it caused.(e) The abuse the plaintiff suffered resulted in lifelong mental illness. Its effects include insomnia, an eating disorder, depression, a fear of being punished, relational difficulties and avoidance of others. As a consequence she has led a life that has been extraordinarily restricted.(f) The plaintiff made contributions to the building up of the family'swealth.(g) RT and ST have no strong moral claim on the estate on the basis of grounds outside the Act. Substantial provision has been made for them.[69] Noting that the properties of the plaintiff and GB do not produce income, andthat their only income apart from GB's income is New Zealand Superannuation, itwas contended that an award should be made from CD's estate of a capital sumwhich could be placed in a fixed term account, so as to generate an income by way of interest. It was submitted that a moderate income amount would be about $50,000 per year (gross) which would be generated by a capital amount of $1.25 million, applying an interest rate of 4 per cent per annum. Consequently an award of that sum was said to be appropriate to recognise CD's obligations to repairthe breach of her moral duty to the plaintiff.Submissions of the beneficiaries served[70] Mr Downing addressed the issues of maintenance and support separately. He contended that the existence of economic need in a broad sense is a requirement for maintenance. He argued that the plaintiff had no such financial need, being an older married woman aged 67 years with no dependents, a good asset base, and additional19 Citing National Heart Foundation of NZ v Carroll (2009) 28 FRNZ 268 (HC) at [60].actual or potential income from rental properties. He cited the following statement in Law of Family Protection and Testamentary Promises in support:20An older person with fewer needs and some capital assets and income may need no capital award.[71] Mr Downing accepted that even if an adult child has no need of maintenance, the possibility of a separate claim for support was recognised in Williams v Aucutt.21He argued that the Courts have made clear that claims for support based on family recognition will always be modest sums, citing Flathaug v Weaver.22 He contended that the plaintiff could not expect to be treated in a comparable way to the other substantial beneficiaries, and that her situation was fundamentally different from the lifelong relationships that, underpinned the Aucutt and Auckland City Missioncases.23 His submission was that, although there had been almost no mother/daughter relationship between the plaintiff and CD since the late 1960's, shehad not been excluded under the will, and any claim was so weak that a very modest sum of money satisfied the moral duty.[72] Mr Downing made a further point that the intentions and reasons of the deceased in making provision for a claimant will be given considerable weight. Reference was made to the written reasons which CD left with the Public Trust concerning the treatment of the plaintiff in the context of an earlier will, which referred to both the fact of their estrangement, and to CD's knowledge of theproperties owned by the plaintiff and GB.[73] However, while there was no provision for the plaintiff in the 28 October 2003 will, a bequest of $25,000 was introduced in a will dated 2 November 2005 which was maintained in the last will of 16 December 2008. This was described as a crucial change. Indeed, Mr Downing accepted that if it had not been made, then the beneficiaries would have been precluded from arguing that there had been no breach of moral duty. The point was also made that CD went into a rest20 W N Patterson, Law of Family Protection and Testamentary Promises (4th ed, LexisNexis Wellington, 2013) at [4.6].21 Williams v Aucutt, above n 4.22 Flathaug v Weaver, above n 11 at [39]–[42].23 Auckland City Mission v Brown, above n 6.home on 27 February 2009, and that the plaintiff did not visit CD in the rest home in the period up until her death on 7 October 2012.[74] With reference to CD's stated reasons, Mr Hunt pointed out that there wasconsiderable uncertainty as to what was signed and when. He suggested that considerable caution was required when relying on such reasons, because they could have been dictated by EF. So far as rest home visitation was concerned, he contended that there was no evidence that the plaintiff did not want to visit her mother, but the reality was that she was prevented from doing so by RT's actions.Analysis of the plaintiff's claim[75] The first consideration is the nature of the moral duty. In this case a moral duty undoubtedly exists given that the relationship in question is between a mother and daughter (albeit one that was exceptionally strained for several years). Those difficulties, however, are directly relevant to the assessment of the extent of that moral duty and to the degree to which it has been breached.[76] The estrangement between the plaintiff and CD, and the causes underlying it, are pivotal in this regard. They became estranged in 1969 when the plaintiff was 22. Their relationship remained fractured for more than four decades. There are competing narratives about the causes of this estrangement.[77] The beneficiaries assert that the plaintiff was a neglectful child who abandoned her parents and no longer cared for them. They did not approve of her marriage at all. She did not participate in caring for CD in the latter stages of her life. Her only contact with CD prior to her death was opportunistic, motivated by the protection of her inheritance, and it distressed CD.[78] Conversely, the plaintiff paints a troubling picture of a very difficult childhood that involved social isolation at the hands of her parents, severe physical abuse, and child labour in CD's business.[79] The difficulty is that both narratives have a degree of independent support in the affidavits. For example, many of CD's close friends, as well as her granddaughter YZ, depose to the long-term tension in the relationship between mother and daughter. They also affirm the stress caused to CD by her contact with the plaintiff in the latter stages of her life. Those accounts do not corroborate theplaintiff's claims of abuse. However, this is perhaps unsurprising. The plaintiff'snarrative is that she and her brother were kept away from others when there were physical signs of the harm that had been done to them.[80] The plaintiff's strongest support is found in the medical evidence presented to the court. This documents her past breakdowns and provides reports from the 1980s which include a history that corroborates the narrative on which she relies,particularly in respect of her father's behaviour. The medical evidence describespersistent and cruel abuse and isolation that goes significantly beyond any level of corporal punishment considered socially acceptable at the time. It is impossible to verify the details as the plaintiff has presented them, but they read very authentically. Her claims are therefore relevant and should be treated as credible in the assessment of the award.[81] In my view, the effect of these considerations elevates the moral duty owed to the plaintiff by CD, but not by a particularly large extent. A wise and just testator inCD's position would not have effectively shut out the plaintiff on account of an estrangement that may have been caused by CD and EF's disapproval of GB in the 1960s. This is particularly so given the plaintiff's youth at the time of thosedifficulties.[82] Likewise, a just testator would have recognized that the childhood endured by the plaintiff merited a more than perfunctory recognition in the provision made out of the estate. A just testator may even have been inclined to contextualize any rebellious behaviour by the plaintiff leading to estrangement, or her decision to keep their granddaughter away from her and EF, as a form of backlash for her childhood experiences in their household.[83] Thus, the extent of the moral duty owed to the plaintiff by CD is slightly elevated relative to other instances of parent-child estrangement (where there are only assertions of exclusion rather than abuse). However, given that the estrangement (whatever its causes) appears to have been vigorously maintained by the plaintiff and CD (albeit endorsed by GB and EF respectively) for several decades, the extent of that elevation should be conservative. This is also the case given that there appear to have been intermittent instances of formal but cordial interaction between them, at least when other persons such as RT were not on hand to prevent it.[84] The next consideration is whether an award under the Act would be more appropriate as an award for support or an award for maintenance. In my view thenature of the plaintiff's claim relies almost exclusively on support, which is the wider and more amorphous heading under which a claim pursuant to s 4(1) may bemade. It relies on the plaintiff's feeling that she suffered at the hands of her parents and that she is now entitled to part of CD's legacy as a result of both her inherentposition as a daughter, as well as because of the treatment she received as a child.[85] A further factor is the size of the relatively substantial estate, amounting to approximately $2.4 million. The plaintiff received approximately $25,000, which amounts to just over one per cent of the estate. Although, as previously noted,24there is limited utility in comparing the shares allowed or disallowed in other cases (expressed as percentages), the reality is that a one per cent share of a sizeable estate does seem unduly low. It can, of course, easily be contextualized by the fractured nature of the relationship between CD and the plaintiff. However, in my view, there is a strong argument that a one per cent share does not provide proper support in a manner consistent with CD's moral duty towards the plaintiff, irrespective of their estrangement.24 At [22] above.[86] The plaintiff was informed of CD's death in a perfunctory manner and there were timing restrictions on when she was to be given that information. With some justification, she feels that she has been unfairly excluded from a legacy to which she feels entitled. Accordingly, her claim is appropriately viewed as a support claim in terms of the definition of that head as explained in Williams v Aucutt.25[87] The plaintiff's financial situation has been disclosed to the Court in support of the claim. The plaintiff is comparatively asset-rich, but of modest cash means. Although she and her husband own several assets, more than half of their yearly income derives from GB's work as a machine operator. It is unclear how long GB will be able to continue to work to support them given his age. The plaintiff and GB have four property assets, three in New Zealand and one in Australia, with the following rateable values:(a) $395,000.(b) $225,000.(c) $220,000.(d) A$112,000.[88] The plaintiff considers that the true value of the highest value property is less than the rating value. She says that the house is larger than average for the area and that there is little demand for such properties in that region. She also says that the other two New Zealand houses are in extremely poor condition and are not habitable. The couple receive a joint superannuation payment of $33,199.32, GB's gross annualincome of $45,760, and they have savings of approximately $7,000. They also have an ASB mortgage loan with a balance of $41,000 secured over the New Zealand properties.25 At [16] above.[89] While in several respects the plaintiff may be better off than many adult child claimants under the Act, the reality of her means is perhaps further limited by virtue of her age. First, if the two properties are in fact as derelict or unliveable as she suggests, then her ability to do anything to derive any income from them is limited. Secondly, she does not work and, although GB remains employed, it is unclear how sustainable this is given his age. Thirdly, they have a $41,000 bank loan that remains unpaid, which is greater than their savings, and which represents roughly half of their annual cash income. Thus, although GB and the plaintiff are not in dire financial straits, their financial needs will likely grow as they both age. While this factor would not support a substantial claim as its own, it serves to strengthen theplaintiff's claim advanced as it is on the basis of the other factors outlined above.[90] Mr Downing was critical of the quality of the disclosure of the plaintiff'sassets, making the points that the Australian property was not referred to in her first affidavit of 12 October 2013, and that it was RT who provided the rating valuation evidence. It was contended that the plaintiff had consistently attempted to downplay both the value of her assets and the income she is able to generate and that, given the alleged failure of disclosure, there is a serious risk that there may be other undisclosed income and properties.[91] I consider that the plaintiff's first affidavit provided sufficient disclosure of her New Zealand interests. I also accept the explanation in her second affidavit that she did not think to mention the Australian property to her lawyer at the time, which was actually purchased by GB but registered in both their names. It was the plaintiff who provided the land valuation notice in relation to the Australian property. In these circumstances I do not accept that there was an omission which is properly the subject of criticism.[92] In my view, the evidence of the plaintiff's financial situation is a supplementary factor to further justify the support claim, rather than a basis for advancing a maintenance claim. The crux of the claim remains the plaintiff'slongstanding feelings of neglect and exclusion, which appear to have been exacerbated by her treatment in the will.[93] I turn to consider the appropriate quantum of an award. I accept the generaltenor of Mr Downing's submission that support claims based on family recognition will usually be modest. In Silbery v Silbery-Dee Simon France J commented on the quantum of support claims in this way:26[7] The case lies within that category recognised in Williams v Aucutt[2000] 2 NZLR 479. The so-called support claims were analysed bySutton and Peart "Testamentary Claims by Adult Children – theagony of the wise and just testator" (2007) 10 Otago LR 385, at p 409. The authors suggest awards beyond 10 per cent will not be common. Patterson Law of Family Protection and Testamentary Promises (2004) queries the appropriateness of seeing the issue in percentage terms. Varying percentages that have been awarded are noted, but nevertheless the author then observes: it seems that anything above 10% of the estate is unlikely to be awarded at the present time to a claimant whose claimis based only on "support". (at para 9.7).Patterson repeats that observation in the current edition.27[94] In my view, the circumstances of this case justify an award of greater than $240,000, which would be an award of 10 per cent. However the figure proposed by Mr Hunt,28 which would be slightly more than half the total estate, far exceeds an award available on a support claim. An award of that level would plainly fail to reflect the nature of this Court's role under the Act.29[95] In my view a bequest of $360,000 (or 15 per cent) was warranted in this case. The history of the relationship increased the moral duty owed to the plaintiff by CD, resulting in a claim that goes beyond "standard" support of an adult child who merely feels aggrieved by an insufficient legacy.[96] An uplift of five per cent over the more usual level of award represents only a modest uplift. However I consider that a conservative approach is warranted in this case for several reasons. Most importantly, the plaintiff identifies EF, not CD, as the main perpetrator of the abuse. CD did not stop EF's abuse, but it appears that she26 Silbery v Silbery-Dee [2008] NZFLR 191 (HC).27 Above n 20 at [9.7].28 At [69] above.29 At [28] above.was also a victim of his controlling and abusive ways. It would be inappropriate tocompensate for the father's sins entirely through the estate of the mother.[97] Likewise, although the plaintiff's claims certainly have the ring of truth tothem, it is difficult to assess the veracity of the detail of all her claims given that theyare virtually impossible to independently verify. Neither of the plaintiff's parents, nor her brother, are alive to provide their accounts. Her claim certainly ought to be met with an increased award, but an award must reflect what is necessary for "proper support" rather than serving as a quasi-punitive measure.[98] Finally, there must be due deference for testamentary autonomy as far as possible. Although s 4(1) of the Act facilitates a direct intrusion into testamentary autonomy, the court's powers do not allow a re-writing of the will.30 A wise and just testator may forgive where an emotional mortal may be less inclined to do so, but awards must still be coloured by the nuances of a particular relationship. Theplaintiff's mother made a will with the express intention of limiting her daughter'slegacy. That legacy must be corrected to the extent of remedying the breach of moral duty, but no more.Do the executors have personal liability for the award to the plaintiff?Protection from liability under s 47(4)[99] The executors admitted in their statement of defence31 that on 22 April 2013, prior to the six month period from the date of grant of probate which ended on 30 April 2013, a part share in a motel property was distributed by transfer to RT and another beneficiary in their capacity as trustees of a beneficiary trust.[100] Mr Hunt drew attention to the fact that s 47(4)32 expressly refers to theprotection being lost by reason of an administrator having distributed "any part of the estate" within six months from the date of grant of administration. His submission was that it was immaterial that the distribution of the estate was partial, arguing that if Parliament had intended that the protection from a claim could only30 At [13] above.31 At [11] above.32 At [8] above.be lost if the whole estate had been distributed, then the subsection would havereferred to "the estate" instead of "any part of the estate".[101] He further argued that the section refers to the protection being lost in respectof the claim as a whole ("no action shall lie against the administrator"), not to theadministrator losing the protection conferred by s 47(4) only in respect of the property distributed early. Such an interpretation was said to be in accordance with a purposive approach under s 5 of the Interpretation Act 1999. Reference was also made to Re Gimblett,33 Re Winwood34 and O'Malley v O'Malley.35[102] Mr Holloway responded to this aspect of the case. He accepted that what he described as an inadvertent transfer of the share in the motel property occurred nine days before the expiry of the specified six month period. As such, there was a partial distribution of an asset. He accepted that as a result the statutory defence in s 47(4) was not available to the defendants in respect of that partial distribution.[103] However, he rejected the plaintiff's argument that such a partial distribution precluded that defence in respect of the entire estate. He contended that bothO'Malley and Re Winwood were not in point, given that in both cases the entire estate was distributed before the expiry of the relevant period.[104] I favour the interpretation advocated by Mr Holloway. In my view, administrators who distribute part of an estate prior to the specified period lose the benefit of the protection forwarded in s 47(4) only to the extent of the premature distribution.A duty of even-handedness?[105] Mr Hunt advanced the case for personal liability on the part of the executors on an alternative basis, namely that the defendant executors knew that there was every likelihood of a claim being made by the plaintiff against the estate under the Act. He submitted that the provision made for the plaintiff was manifestly33 Re Gimblett [1960] NZLR 664 (SC).34 Re Winwood [1959] NZLR 246 (SC) at 250.35 O'Malley v O'Malley (2001) 20 FRNZ 463 (HC).inadequate and, with that knowledge, the executors distributed the entire estate in the space of a week following 30 April 2013. Only then was the plaintiff advised by way of the letter from Glasgow Harley that CD had died, and that the estate was being distributed.36[106] Attention was drawn to Sadler v Public Trust where the Court of Appeal stated:37[41] In summary, the position is:(a) A duty of even-handedness extends to potential claimants against an estate where an executor is aware that they wish to make a claim.(b) This duty extends to ensuring that an executor does not actively and dishonestly conceal relevant material about the estate from potential claimants who seek information about the estate.(c) We leave open the question of whether the duty of even-handedness may extend to those of whose claim the executor ought to be aware. We also leave open whether any duty of even-handedness to such potential claimants would extend to a duty to inform those potential claimants of the fact of death.(d) There is no general duty on an executor to advertise the fact of death or to inform all potential claimants of the fact of death. This applies even where there may be a suspicion (but not sufficient to bring the potential claimant within category [41](c) above) that a particular potential claimant may wish to make a claim. This means that the question left open by this Court in Price v Smith (see at [35](c) above) has now been answered in the negative.[107] While accepting that there is no general duty on an executor to advertise the fact of death, or to inform all potential claimants of the fact of death, it was Mr Hunt's submission that a duty of even-handedness extends to persons whose claims the executor ought to have anticipated. It was contended that the present case was precisely the sort of instance in which the duty of even-handedness arose, given that the plaintiff was the deceased's only daughter, that she received only one per cent of the estate, and that the balance of the estate went to YZ and to strangers.36 At [4] above.37 Sadler v Public Trust [2009] NZCA 364, [2009] NZFLR 937.[108] Mr Holloway acknowledged that the defendants were aware that the plaintiff was the closest blood relative to CD, and that the executors would certainly have been aware that the plaintiff was receiving a very small part of the estate. However, he submitted that it is arguable whether it could then be inferred that they ought to have been aware of a possible claim by the plaintiff. This is because they were also aware of the estrangement between CD and the plaintiff, both through their own personal knowledge and from CD's earlier statement of reasons.38 It was also said that the executors were aware that CD regarded the plaintiff as being financially secure.[109] It was further submitted that, even if it were held that the defendant executors ought to have contemplated a possible claim, given the disparity in the amount left to the plaintiff, they were fully entitled to distribute the estate without concern for liability after the six month period, which is what they did in essence. Reliance was placed on Nevill's Law of Trusts, Wills & Administration in New Zealand39 and Re Stewart.40[110] I recognise that in his cross-examination RT acknowledged that he did not get any advice about his role as an executor, that he did not understand that the plaintiff was a person who would be entitled to make a claim under the Act, and that he did not accept or understand that he had or might have an obligation to the plaintiff as a person entitled to claim under the Act. As he said, his understanding was that he had a clear obligation to serve the person for whom he had taken on the job.[111] In my view the present case squarely raises the question left open in Sadlerabout whether the duty of even-handedness may extend to those of whose claims theexecutor ought to be aware. Notwithstanding RT's evidence, I consider that it should have been abundantly plain that the plaintiff, as CD's only surviving child and therecipient of a bequest of one per cent of a large estate, would be entitled to make a claim, and further that that claim would likely be frustrated by distributing the assets prior to informing the plaintiff of her bequest. I consider that a duty of38 At [72] above.39 Nevill's Law of Trusts, Wills & Administration in New Zealand (11th ed, LexisNexis, Wellington, 2013).40 Re Stewart [2003] 1 NZLR 809 (HC) at [24].even-handedness arose in the circumstances and that the executors were in breach of that duty.[112] As a consequence of that breach, I consider the Court is entitled to and should hold the executors personally liable for the amount of the award made in favour of the plaintiff.Following orders[113] However, if my conclusion on that issue is found to be erroneous, then I hold in the alternative that the plaintiff is entitled to following orders under s 49 of the Administration Act 1969 in respect of the bequests (including the residue) to RT, ST and to YZ's inheritance trust created by the deed of trust dated 12 December 2007.[114] All those parties had knowledge of the circumstances giving rise to theplaintiff's claim, and YZ participated with the executors in the execution of CD'sinstructions, as reflected in the communications to the plaintiff in May 2013.41Orders[115] The plaintiff is entitled to:(a) judgment in the sum of $335,00042 together with interest on that sum at the Judicature Act 1908 prescribed rate from 6 May 2013 to the date of judgment;(b) an order that RT and ST are personally liable for the amount of the judgment in (a);(c) in the alternative to (b), following orders under s 49 of the Administration Act 1969 against RT, ST and the YZ inheritance trust.41 At [4]–[5] above.42 The $360,000 referred to in para [95] less her bequest of $25,000.[116] Leave is reserved to apply for further orders or directions which may be necessary to implement the judgment.[117] Prima facie the plaintiff is entitled to costs. In accordance with Mr Downing's request the parties are to make submissions on costs. The followingtimetable will apply:(a) plaintiff's submissions in support of costs by Friday, 5 February 2016;(b) submissions of defendants and beneficiaries by Friday, 26 February 2016;(c) any submission in reply by the plaintiff by Friday, 18 March 2016.[118] Leave is reserved to apply to vary that timetable, in particular if counsel consider that a more compact timetable is manageable.___________________________Brown JSolicitors:Young Hunter, ChristchurchGlasgow Harley, Nelson