ORMSBY v VAN SELM [2015] NZHC 2822

ORMSBY v VAN SELM [2015] NZHC 2822

Appeal allowed. The Family Court erred by effectively re‑writing the will on fairness/equality grounds. Applying the correct test (minimal redress to remedy breach, taking account of family recognition and demonstrated financial need), the High Court altered the will so the farm vests: Alan 45%, Janine 30%, Tia 25% as the minimum required provision for proper maintenance and support given the egregious breach and the claimants' needs.

Citation
[2015] NZHC 2822
Parties
Appellant: Alan De Lisle Ormsby; First Respondent (executor/trustee): Jake Van Selm; Second Respondent: Jacqueline Ann Van Selm (Tia); Third Respondent: Janine Alexandra Ormsby
Court
High Court
Jurisdiction
New Zealand
Judgment Date
13 November 2015
Procedural Posture
Appeal Under Family Protection Act 1955 / High Court Appeal From Family Court Judgment on Quantum of Relief
Outcome
Appeal allowed; Family Court judgment set aside; will altered
Legal Topics
Family Protection Act S4, Moral Duty, Proper Maintenance and Support, Quantum of Relief, Variation of Will, Testamentary Freedom
Family Law Succession/estates Trusts and Executors Family Protection Act S4 Moral Duty Proper Maintenance and Support Quantum of Relief Variation of Will +1 more

Case Brief

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Parties

Alan De Lisle Ormsby

Appellant

Jake Van Selm

First Respondent (executor/trustee)

Jacqueline Ann Van Selm (Tia)

Second Respondent

Janine Alexandra Ormsby

Third Respondent

Procedural Posture

Appeal Under Family Protection Act 1955 / High Court Appeal From Family Court Judgment on Quantum of Relief

Legal Issues

  1. 1 Whether the Family Court applied the correct legal test under s4 of the Family Protection Act 1955
  2. 2 What provision is required for the proper maintenance and support of the claimants
  3. 3 Whether the Family Court impermissibly rewrote the will on grounds of fairness rather than minimal redress of breach

Ratio Decidendi

Appeal allowed. The Family Court erred by effectively re‑writing the will on fairness/equality grounds. Applying the correct test (minimal redress to remedy breach, taking account of family recognition and demonstrated financial need), the High Court altered the will so the farm vests: Alan 45%, Janine 30%, Tia 25% as the minimum required provision for proper maintenance and support given the egregious breach and the claimants' needs.

Court Disposition

Appeal allowed; Family Court judgment set aside; will altered

Orders

  • The will is altered at paragraph 4.1 so that the farm property vests in Alan De Lisle Ormsby (45%), Janine Alexandra Ormsby (30%) and Jacqueline Ann Van Selm (25%)
  • If necessary the farm may be sold to give effect to the vesting order