AP v LUCAS [2021] NZHC 1017

AP v LUCAS [2021] NZHC 1017 [7 May 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-1785[2021] NZHC 1017UNDER the Family Protection Act 1955IN THE MATTER of the Family Court's judgment inFAM-2018-004-115BETWEEN APAppellantAND COLIN JAMES LUCASRespondentHearing: 10 December 2020Counsel: LT Meys and TJP Bowler for appellantPJ Stevenson for respondentSA Grant and JM Goodwin for Ms L (interested party)YE Clarisse for residual beneficiariesJudgment: 7 May 2021JUDGMENT OF FITZGERALD JThis judgment was delivered by me on 7 May 2021 at 3.30pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateSolicitors: Nielsons Lawyers, AucklandCarter Atmore, AucklandPitt & Moore, NelsonTo: S Grant, AucklandIntroduction[1] Ms P's father (who I will also refer to in this judgment as the deceased, or thetestator) died on 6 July 2017 after a number of years of ill-health. In August of lastyear, the value of his estate was in the vicinity of $3.2 million. It comprised anapartment in Newmarket (with a valuation of a little under $1 million), bank accountsand managed funds (worth approximately $2.1 million), various chattels, a relativelynew Mercedes motor vehicle and a Rolex watch (worth around $51,000).[2] The deceased's last will and testament was executed on 30 June 2017, a matterof days before his death. There is no suggestion he lacked testamentary capacity inrelation to his will. His will provided that the Newmarket apartment would pass toMs L, his widow. The deceased and Ms L had met approximately two years beforehis death, and had married a few days before he passed away. Pursuant to anagreement under the Property (Relationships) Act 1976 (the PRA), Ms L was also paidthe sum of $500,000 upon the deceased's death.[3] The deceased had three adult children from an earlier marriage. His will leftto one of his children, Ms P, a number of personal chattels of sentimental value (suchas Dutch antiques, paintings and family medals) with a value estimated to be around$10,000. All remaining personal and household effects, including the Mercedes motorvehicle, were left to Ms L. The Rolex watch has passed to Ms P. Ms P's two sistersreceived nothing from their late father but have taken no steps in these proceedings.[4] The residue of the estate, totalling some $2.1 million, was left equally to Ms P'stwo daughters (in other words, the deceased's granddaughters) who were born inSeptember 2002 and August 2005 respectively. They are presently aged 18 and 15years old. I will refer to them as J and M respectively.[5] By all accounts, the deceased had a strong personality, and had a difficultrelationship with all three of his children, though in recent years the relationshipbetween himself and Ms P had rekindled, particularly following the birth of her twochildren.[6] Following her father's death, Ms P was significantly aggrieved to learn that shehad effectively been excluded from his will, other than to receive some chattels ofrelatively minor value. Her disappointment was no doubt exacerbated by the fact thatMs L received significantly more benefits under the will and the PRA agreement, andthat her own children also received significantly more than her. This was also againstthe backdrop of an earlier will which the deceased had executed in December 2016, inwhich he gifted to Ms P the same Dutch antiques and other sentimental chattels, leftthe remaining personal and household effects (including the Mercedes motor vehicle)to Ms L, directed that the sum of $300,000 was to be held on trust by Ms P and appliedat her sole discretion for the education of her two children, but left the whole of theresidue of the estate to Ms P.[7] It was in this context that Ms P commenced proceedings in the Family Courtpursuant to s 4 of the Family Protection Act 1955 (the Act), seeking further and betterprovision from the deceased's estate.[8] In the Family Court, all parties agreed that there had been a breach of thedeceased's moral duty to make provision for Ms P. Two key issues accordingly arosebefore the Family Court:(a) first, what further provision should be made in favour of Ms P; and(b) second, from what source should that further provision be made.[9] The Family Court Judge, Judge L J Ryan, concluded that further provisionought to be made in favour of Ms P, but in a way which interfered as little as possiblewith the deceased's intentions, particularly in relation to his widow Ms L, andreflecting his clear desire to help his two granddaughters establish themselves in theirearly adulthood.1 The Judge accordingly left the bequests in the will to Ms Lunchanged. He confirmed the bequest of the Dutch antiques and other similar chattelsto Ms P, as well the deceased's Rolex watch. In relation to the residue of the estate,Judge Ryan ordered that it be divided into thirds, with Ms P receiving one-third and1 [P] v Lucas [2020] NZFC 7118 at [49], [51], and [60].each of the two granddaughters to receive one-third upon attaining the age of 21 years.This effectively increased Ms P's share of the estate from around $10,000 to $700,000.[10] Ms P now appeals against the Family Court judgment. She says that additionalprovision should be made for her out of her late father's estate. Mr Meys, Ms P'scounsel, presented Ms P's primary argument as being that the Judge erred ineffectively equating Ms P's provision with that of her two children. He says that it ishighly unusual and ultimately wrong as a matter of principle to allow for equality asbetween grandchildren of a deceased and their living parent. Ms P's secondaryargument is that the provision made for her is insufficient when compared with thesignificant provision made for Ms L, who had only known the deceased for the lasttwo years of his life.[11] Neither Ms L nor the deceased's grandchildren cross-appeal against the ordersmade in the Family Court. Ms L appeared on the appeal as an interested party andbroadly supported the judgment below. Ms Clarisse appeared as counsel for thedeceased's elder granddaughter (M) (who since delivery of the Family Court judgmenthas attained the age of 18 years), and as litigation guardian for the younger grandchild(J), now 15 years old. Ms Clarisse confirmed that the granddaughters' position is thatthe Family Court's determination should be left undisturbed.[12] The respondent, Mr Lucas, is the executor of the deceased's will. He abidesthe Court's decision on the appeal.[13] This judgment is structured as follows:(a) First, I summarise the relevant factual background. I do so largely byreference to the facts as summarised in the Family Court judgment,which are not in issue.(b) Second, I summarise the legal principles applying to the appeal.(c) Third, I summarise each party's submissions.(d) Finally, I set out my discussion of the issues and the conclusions I havereached in relation to them.Factual background[14] As noted above, the underlying facts are not in dispute and were helpfullysummarised in the Family Court judgment. I therefore gratefully adopt that summary:2[10] The applicant was born on 19 April 1969. Her older sister [E] wasborn in 1967 and her younger sister [X] was born in September 1971. Thedeceased and the children's mother [A] ended their relationship in 1979. Thefamily lived in the Netherlands. They were all born there including thedeceased. The deceased suffered the first of many heart attacks in 1981. Hehad commenced a new relationship in 1980 and subsequently married [G],who from all accounts was "the love of his life". Unfortunately, [G] passedaway in March 2015 as a result of cancer. She and the deceased had movedfrom the Netherlands to New Zealand in 1990 and they remained living in thiscountry.[11] The deceased and [A] were embroiled in an acrimonious battle overwhat appears to be matrimonial property and maintenance. Mostunfortunately [P] was drawn into these proceedings and apparently had to giveevidence. It is unclear to me which of her parents were responsible forinvolving her. Suffice it to say that [P's] involvement at the hearing infuriatedthe deceased and for some time he appeared not to forgive her for whatever itwas that she had done in his eyes. Notwithstanding that to be the case, itappears that [P] and [X] did visit their father in New Zealand in or about 1990and then [P] visited again in 1992, 1993 and 1996.[12] From 1996, there was little contact between father and daughter until2002 when [P] told her father that she was pregnant with [M]. Any significantcontact however did not really commence again until 2013 when [P] learnedof [G's] ill health. In December 2013 [P] and her children travelled to NewZealand and stayed for some 11 days. This was the first time the grandchildrenhad met their grandfather. A year later in December 2014 [P] travelled againto New Zealand to meet with her father and then in January 2015 she visitedonce more. This was not long before [G's] death. There was regular contactby way of phone calls and emails between father and daughter from 2013.[13] In June 2015 the deceased met [Ms L] at Auckland Hospital duringone of his many admissions. They had met through a dating site. Thedeceased, a day or two after he had met [Ms L], had heart surgery. During hisrecovery [Ms L] would visit the deceased at his home in the retirement villagewhere he lived. The deceased was wanting companionship given the recentdeath of [G] and it appears [Ms L] was providing not only that, but she alsobegan caring for him and staying overnight with him. It appears a sexualrelationship began within a couple of weeks of their meeting. The evidencediscloses this was an important factor for the deceased.2 [P] v Lucas [2020] NZFC 7118.[14] In November 2015 the deceased brought the apartment in GeorgeStreet, Newmarket, apparently because he needed to leave the retirementvillage. Shortly thereafter the deceased was again admitted into hospital dueto the issues with his heart. He was discharged on 30 December and returnedto the George Street apartment. [Ms L] was living in the apartment with thedeceased except during some of the period when [P] and the children werevisiting from Holland. According to [Ms L] early in 2015 the deceased askedher to cancel the lease on her unit and indicated that he wanted her to move inwith him permanently.[15] On 18 April 2016, as part of the events around [Ms L] terminating herlease, the deceased and she signed a relationship property agreement. Thatagreement provided for a payment to be made upon the defendant's death, of$250,000 to [Ms L] and it also recorded that the deceased had made provisionin his will for a further payment of $250,000 to [Ms L]. It is pertinent to notein the preamble to that agreement, it was recorded."A. The parties entered into a relationship in the nature of a de factorelationship in June 2015."[16] During [P's] visit to New Zealand in January 2017 the deceased gaveher a Rolex watch that used to belong to [G], which it was agreed was worthat that time, some $32,000. Shortly after the visit the relationship propertyagreement between the deceased and [Ms L] was varied by way of a deed.The variation replaced the operative clause in the earlier agreement. The newprovision stated:"[Ms L] and [the deceased] agree that [Ms L] is entitled to a paymentfrom [the deceased] of the sum of $500,000, which sum falls due on thedate of [the deceased's] death to compensate [Ms L's] loss of cancellingHousing New Zealand's tenancy. The payment of the sum of $500,000is separate and apart from any gift [the deceased] may (in his soleunfettered and absolute discretion) elect to make in [Ms L's] favour in hiswill. Such promise of payment is payable regardless of whether [Ms L]and [the deceased] are in a de facto relationship at the time of [thedeceased's] death."[17] Although [G] died in March 2015, pursuant to her will her estate washeld in trust with the deceased receiving income from it. [G's] will providedthat upon the deceased's death, [P] would receive from her estate the sum of$300,000. For reasons which are unclear the amount received by [P] onlyamounted to $218,000.[15] The following additional matters are relevant to note at this stage. First, it isnot in dispute that the deceased had been relatively ill for a number of years before hisdeath. As is evident from the above extracts from the Family Court judgment, theissues were heart-related. It is also not in dispute that he was very seriously ill in thetwo years prior to his death, and effectively needed 24/7 care. Fairly early on in theirrelationship, Ms L moved in with the deceased and provided that 24/7 care and supportto him. In addition to the health-related care she provided, she also provided thecompanionship which the deceased desired, as well as a physical relationship.[16] Further, despite the difficult relationship between Ms P and her father(stemming from what appears to have been the deceased's view that Ms P "sided" withher mother, the deceased's ex-wife, in acrimonious divorce proceedings when Ms Pwas a teenager), the relationship between father and daughter had rekindled to anextent over the approximately 10 years prior to his death. This was particularly sofollowing the birth of Ms P's two children, for whom the deceased obviously had greataffection. As the Judge noted, Ms P had visited New Zealand several times prior tothe deceased's death, and on two of those occasions had brought her young childrento meet their grandfather.[17] What is clear, however, is that the relationship between father and daughtertook a dramatic turn for the worse, when on the journey to the airport following herlast visit to New Zealand prior to her father's death, Ms P recounted to Ms L thedivorce proceedings between the deceased and his ex-wife, and that Ms P had gotdragged into those proceedings between her parents. Ms L evidently recounted whatMs P had told her to the deceased on her return home that afternoon, which put thedeceased into a rage. Ms P gave evidence of her father ringing her while she was stillin the departure lounge at the airport, and raging against her in the phone call aboutwhat she had told Ms L. It was subsequent to this that the deceased changed his willto reflect those provisions summarised at [2] to [4] above.The Family Court decision3[18] Having summarised the factual background as set out at [14] to [17] above,together with the various wills the deceased had executed over the period 2010 to June2017, the Judge addressed the legal principles applicable in a case of this kind. I havesummarised those principles later in this judgment (see [36] to [41] below), and noissue is taken on appeal with the Judge's statement of the law.3 [P] v Lucas [2020] NZFC 7118.[19] The Judge then summarised the value of the estate, observing that while it wasnot large, it was of sufficient size to have enabled the deceased to meet his moral dutyto his daughter whilst still satisfying his desire to recognise and provide for his widowand his grandchildren. The Judge noted that the value of the apartment and otherbequests to Ms L totalled some $1 million, representing a little over 30 percent of theestate.[20] The Judge then examined in some detail the relationship between the deceasedand Ms P, noting that all counsel acknowledged that that relationship lay at the heartof the dispute. The Judge noted that the Court of Appeal in Flathaug v Weaver4 hadconfirmed that the moral duty owed by a parent to a child to provide maintenance andsupport will be reduced if that relationship was dysfunctional, intermittent or reducedin some other way. The Judge also noted that the strength of the moral duty will impacton the quantum of any award for a breach of that duty.5 The Judge traversed theevidence relating to the deceased and Ms P's relationship, which for many years hadbeen a difficult one. The Judge found that the deceased's move from the Netherlandsto New Zealand was a major factor in the weakening of his relationship not only withMs P, but also with his two other daughters. The Judge found that the move was aselfish one and did nothing to assist Ms P or her sisters who were at that time stillrelatively young women (although living independently). The Judge did acknowledgethat from 1990, the deceased gave gifts to Ms P and that he kept in touch with her bytelephone and email. He also paid for Ms P's holiday with himself and G in Italy, andpaid for Ms P to visit New Zealand in 1990, 1992, 1993 and 1996. The Judge notedthat for about six years, there was little contact between the deceased and Ms P untilher first daughter, M, was born in 2002 (accepting Ms P's evidence that it was she whohad initiated contact with her father by telling him she was pregnant).[21] The Judge noted that it was clear from the evidence, and not really disputed byany of the witnesses, that the deceased was a person who had very strong views aboutmost things. He referred to evidence of a friend of the deceased, who he found to bea compelling witness, that over time the deceased had gradually "burnt off all hisfriends". The Judge also accepted evidence from this witness that the deceased's4 Flathaug v Weaver [2003] NZFLR 730 (CA).5 Referring to Parsons v New Zealand Guardian Trust Company Ltd [2008] NZFLR 933 (FC).second wife, G, had been the "love of his life" and that her death impacted hugely onhis emotional wellbeing. The Judge noted that while Ms P's relationship with herfather was fraught, it was clear she had a close and caring relationship with G whichwas presumably the reasons G left $300,000 to Ms P from her own estate.[22] Having traversed the history of the relationship between father and daughter,the Judge concluded that the responsibility for the "difficult, sometimes dysfunctionalrelationship" between the two lay primarily with the deceased. The Judge observed:6Ms Grant [counsel for Ms L] submits that the evidence falls short ofestablishing that the deceased was "vindictive or embittered" in his dealingswith [Ms P]. With respect I do not agree. The deceased displayed behaviourthat was intolerant, impulsive, controlling and revengeful in respect, not onlyof [Ms P], but as I have said earlier in respect of his friends and acquaintances.It was that personality coupled with the deliberate decision to leave his familyin the Netherlands and resettle in New Zealand, that led to the difficult andstrained relationship between the applicant and the deceased.In making this finding, I am not dismissing the submission that [Ms P] did notcontribute to the causes of the dysfunctional relationship, nor am I suggestingthat she did as much as she could to effect a reconciliation. I accept thesubmission that she could have done more.[23] On appeal, it was not in dispute that the Judge's findings on the evidence ledhim to conclude that there had been a relatively serious breach of the deceased's moralduty to Ms P.[24] The Judge then turned to Ms P's financial circumstances. Again there was nodispute as to the Judge's factual findings in this regard. He noted that Ms P was at thattime of his judgment 51 years of age and living in rental accommodation (which shehad done for some 12 years). She is a bank employee and the Judge noted that hersalary is sufficient to cover her living expenses. Ms P supports one of her two childrenwho as noted is now 15 (M having lived with her father since 2016). The Judgeobserved that Ms P has insignificant savings or property, notwithstanding that shereceived a little over $200,000 from G's estate. He rejected the submission that shehad been "a poor financial manager" and effectively "frittered away" the money. TheJudge observed that:76 At [40] – [41].7 At [43].Given the sum of money received from [G's] estate was never going to besufficient to enable her to purchase her own home, it is somewhat harsh in myrespectful view, to criticise her for trying to improve her quality of life a little.[25] The Judge was ultimately satisfied that Ms P's financial circumstances weresuch that she appeared to be living within her means but to no extent extravagantly.He stated that the fact that at age of 51, apart from the bequest from G, she has notbeen able to accumulate assets or savings, indicated that her living is at or aroundsubsistence level.[26] Turning to whether there had been a breach by the deceased of his moral duty,the Judge found that due to his selfish actions in leaving his family in the Netherlands,coupled with the elements of his personality already described, the deceased was "theantithesis of a wise and just testator".8 The Judge stated:9He was reactive, judgmental, impulsive and unempathetic. He appeared totake not responsibility for the state of his relationship with [Ms P] and for hisother two children for that matter.[27] The Judge fairly readily concluded that by effectively excluding Ms P from hiswill, the deceased breached his moral duty to her.[28] The Judge then turned to the quantum of the award, being that necessary toremedy the breach of moral duty. The Judge emphasised that only provision sufficientto remedy the breach was required, and the Court did not have jurisdiction to rewritea will simply because the result might be considered unfair.10 The Judge noted thatthe claim in this case was more than simply a claim for recognition, but that he mustalso take into account the lack of financial and emotional support to Ms P for manyyears after the deceased separated from Ms P's mother. The Judge considered theestate large enough to balance the needs of Ms L, as the deceased's widow, and thebeneficiaries under the will, together with an award for Ms P. The Judge noted:11The assessment of quantum can be informed by the provision made by thedeceased for the applicant in his will of 15 December 2016. She was toreceive the residue of the estate. Less than three months later, after theconfrontation between the deceased and the applicant on the day she left New8 At [47].9 At [47].10 Referring to Williams v Aucutt [2000] 2 NZLR 479 (CA) at [37] and [68].11 At [54].Zealand, the deceased effectively removed her as a beneficiary except for theDutch belongings. There was nothing wise or just about that action.[29] The Judge then said the following:12I was invited to make an award sufficient to enable the applicant to purchasea home of a reasonable standard in Holland. I accepted this meant around$1 million in New Zealand dollars. Unlike the expectations of NewZealanders there is no presumption in Europe that one should own their ownhome. My sense of the applicant was that she had not such expectation.[30] The Judge stated that it was not for Ms L to justify what she inherited pursuantto the deceased's will. The Judge also observed that the payment to Ms L of $500,000by virtue of the relationship property agreement also did not "become a significantfactor in determining the award". The Judge rejected any suggestion that Ms L wasendeavouring to influence the deceased, both in relation to the relationship propertyagreement and his testamentary disposition. He stated:13She may have made the most of her opportunities as they presented themselvesbut she cannot be criticised for that. There is no doubt she providedcompanionship, care and attention to the deceased from the moment shemoved in with him. Her tasks became onerous and difficult the more unwelland incapacitated he became. His words at their wedding demonstrated thefeelings he had for her and he was entitled to provide for her in the manner hedid.[31] The Judge accordingly accepted Ms Grant's submission that the Judge shouldtake into account the deceased's clear intention to recognise the importance of Ms Lto him in the last two years of his life, and his intention to give her the apartment inNewmarket to meet her accommodation needs.[32] The Judge did consider converting Ms L's interest in the Newmarket apartmentto a life interest, but concluded that would be a step too far, not reflecting thedeceased's intentions.[33] The Judge accordingly excluded the Newmarket apartment and other bequeststo Ms L from the incidence of the award he proposed to make in Ms P's favour. Takinginto account his assessment of the relationship between Ms P and her father, the Judge12 At [56].13 At [58].concluded that the residue of the estate ought to be divided equally between thegrandchildren and Ms P. The Judge noted that the effect of that order was to provideto Ms P with an award of approximately 23 percent of the value of the estate. TheJudge stated:14I acknowledge this is near the top of the scale of awards in such cases, but forthe reasons I have articulated, it is a justifiable award given the serious breachof moral duty I have found occurred.[34] The Judge concluded as follows:[62] This of course means the two grandchildren's awards are reduced tothe same size as that of their mother. In the normal course of events, however,they can expect to inherit from their mother whatever may be left of her awardin the future. There is no evidence that would suggest anything other than aloving mother/daughter relationship between the applicant and her twochildren. In fact I was impressed with the applicant's evidence as to hercommitment to them both, demonstrated by her approach to carearrangements. I am confident that the applicant will provide for her twochildren in any testamentary disposition that she makes or has already made.[63] Looking at the overall picture of the result of this award I am satisfiedthat orders in these terms makes as little interference with the testator'sintention as possible, especially in relation to his widow and still reflectsultimately his desire to help his two grandchildren establish themselves intheir early adulthood.Legal principles applicable to appeal[35] In Talbot v Talbot the Court of Appeal confirmed the proper approach toappeals of the nature in this case:15Whether or not there has been a breach of moral duty set out in s 4 of the Act16is a threshold issue, turning on matters of law, fact and degree. Appealsinvolving this threshold issue fall to be determined by reference to theapproach set out in Austin Nichols. If there is a breach of moral duty found,then what remedy should be granted by the Court below is an issue involvingthe exercise of a discretion, and an appellate court will only intervene if therehas been an error of law or principle, if the Judge below took into account anirrelevant consideration or failed to take into account a relevant consideration,or if the decision below is plainly wrong.14 At [61].15 Talbot v Talbot [2017] NZCA 507, [2018] NZFLR 128 at [37].16 That is, the Family Protection Act 1955.[36] Randerson J in Vincent v Lewis succinctly summarised the principles drawnfrom earlier leading authorities on claims for further provision:17(a) The test is whether, objectively considered, there has been a breach ofmoral duty by [the testatrix] judged by the standards of a wise and justtestatrix.(b) Moral duty is a composite expression which is not restricted to merefinancial need but includes moral and ethical considerations.(c) Whether there has been such a breach is to be assessed in all thecircumstances of the case including changing social attitudes.(d) The size of the estate and any other moral claims on the testator'sbounty are relevant considerations.(e) It is not sufficient merely to show unfairness. It must be shown in abroad sense that the applicant has need of maintenance and support.(f) Mere disparity in the treatment of beneficiaries is not sufficient toestablish a claim.(g) If a breach of moral duty is established, it is not for the Court to begenerous with the testator's property beyond ordering such provisionas is sufficient to repair the breach.(h) The Court's power does not extend to rewriting a will because of aperception it is unfair.(i) Although the relationship of parent and child is important and carrieswith it a moral obligation reflected in the Family Protection Act, it isnevertheless an obligation largely defined by the relationship whichactually exists between parent and child during their joint lives.[37] His Honour reiterated these principles in the Court of Appeal's subsequentdecision in Fisher v Kirby:18[119] The more recent decisions of this Court have re-emphasised what hasalways been understood: that mere unfairness is not sufficient to warrantdisturbing a testamentary disposition and that, where a breach of moral dutyis established, the award should be no more than is necessary to repair thebreach by making adequate provision for the applicant's proper maintenanceand support.[120] The decisions of this Court from and including Little v Angus areproperly viewed as a timely reminder that awards should not be undulygenerous. But, in our view, neither should they be unduly niggardly,particularly where the estate is large and it is not necessary to endeavour tosatisfy a number of deserving recipients from an inadequate estate. A broad17 Vincent v Lewis (2006) 25 FRNZ 714 (HC) at [81].18 Fisher v Kirby [2012] NZCA 310, [2013] NZFLR 463.judicial discretion is to be exercised in the particular circumstances of eachcase having regard to the factors identified in the authorities.[38] It is also clear that claims for provision or further provision from an estate areoften made (and determined) by reference to a percentage value of the estate. AsKatz J observed in Ormsby v van Selm:19In a number of other cases, awards to children on a family recognition basisalone, as distinct from economic need, have tended to be in the range of 10 percent to 20 per cent of an estate, depending on the particular factors involved.Where the estate is small, and there are many competing moral claims, thenobviously an award is likely to be at the lower end. If an estate is large, thereare few competing moral claims, and the breach of moral duty is particularlyegregious, larger awards are often made.[39] Also relevant to the present case, leading Court of Appeal authorities are clearthat it is not for a beneficiary to have to justify the share which has been left to themunder a will.20 Thus where the provision awarded to a claimant is sufficient to repairany breach of moral duty, the testator's wishes should prevail.[40] Aside from these principles of general application, Mr Meys also referred meto a number of authorities dealing with competing claims to an estate between thegrandchildren of the deceased and the grandchildren's living parent(s). I discuss thistype of case in more detail later in this judgment,21 but for present purposes, it is sufficeto note that the general thrust of these authorities is that it is often difficult for agrandchild to establish a claim where the grandchild's parent is a living child of thedeceased.22 Whata J summarised the overall approach in Wightman v Public Trust:23Nevertheless the relationship between parent and child assumed primacy in1965, as it does today. Furthermore, the fact that the parent was alive at thetestator's passing was (and is) a major factor in determining whether thetestator was obliged to make provision for the grandchildren. Gresson P andTurner J in re McGregor rejected the claims of the grandchildren in that caseeffectively on the basis that there was no duty to the grandchildren because atthe time of the testator's death their parents still lived and they were not infinancial need. But even then, neither Judge ruled out the possibility of a19 Ormsby v van Selm [2015] NZHC 2822 at [45], upheld on appeal in Ormsby v van Selm [2016]NZCA 323.20 Williams v Aucutt [2000] 2 NZLR 479 (CA) at [68]; Auckland City Mission v Brown [2002] 2NZLR 650 (CA) at [39].21 At [72] to [78].22 As observed by Fisher J in Fraser v O'Grady HC Auckland M262/96, 20 May 1997 at 4; see alsoKnight v Hunt [2019] NZFC 4406; and Chalk v Hoare [2009] NZFLR 736 (HC) at [25].23 Wightman v Public Trust [2014] NZHC 3124, [2015] NZFLR 335 at [60].meritorious claim by grandchildren whose parents were still alive at the timeof the testator's death. Gresson P adopted McCarthy J's formulation in thecourt below that the duty to make provision might arise in "specialcircumstances" and Turner J posited that the duty might arise where the futureneeds of the grandchild were clearly foreseeable.[41] Finally, Mr Meys also referred to the need for a Judge to give adequate reasonsfor the conclusions they have reached, with reference to the Court of Appeal'sstatement in R v Awatere that:24 Judges and Justices should always do their conscientious best to providewith their decisions reasons which can sensibly be regarded as adequate to theoccasion. Indeed failure to follow that normal judicial practice might welljeopardise the decision on appeal.The parties' submissionsSubmissions for Ms P[42] Ms P advances four key grounds of appeal.[43] The first, said to be the primary ground, is that the Judge erred in onlyconsidering the scale and apportionment of awards in more "normal" or "common"claims for provision under the Act, such as those involving competing claims betweenadult siblings or between a step-parent and adult children, and failed to consider caseswhere the apportionment is between grandchildren and their own parent (who is leftout of the will).[44] Mr Meys submits that the Judge failed to consider or refer to the case lawsummarised at [40] above, reflecting the difficulty a grandchild may have in advancinga claim while their own parent (the child of the deceased) is alive. Mr Meys statesthat in his submissions before the Family Court, he had focused on authorities such asFraser v O'Grady25 and H v J,26 but that the Judge did not address or engage withthese submissions.24 R v Awatere [1982] 1 NZLR 644 (CA) at 649.25 Fraser v O'Grady HC Auckland M262/96, 20 May 1997.26 H v J FC Nelson FAM-2007-042-200, 8 June 2007.[45] Mr Meys, in his written submissions, accordingly submits that:It was an error for the Judge to not consider how apportioning two-thirds ofthe residue to [Ms P's] minor children would exacerbate, rather than remedy,the damage caused by the deceased's proved breach of moral duty in his will.The Judge ought to have awarded more of the residue to [Ms P] than to eachof her children individually.[46] Ms P's second ground of appeal is that the Judge erred in believing that hisjudgment awarded Ms P approximately 23 percent of the estate. Given an appreciationin the value of the Newmarket apartment since the Family Court judgment, the awardto Ms P now equates to only about 19 percent of the estate. Mr Meys also notes thecosts claimed by Ms P in the Family Court of $97,000 (though as at the date of thehearing before me, the Family Court Judge had not made any orders as to costs).Mr Meys submits that this further erodes the benefit to Ms P from the award. Ms Psays that the award therefore needs to be revisited to ensure the Judge's stated intentionof awarding her 23 percent of the estate is maintained.[47] Under this ground of appeal, Ms P also says that the Judge erred in acceptingthat an amount of approximately NZD 1 million would have been required for her topurchase a home of a reasonable standard in the Netherlands, but not awarding her anequivalent sum.[48] In this context, Mr Meys submits there was no evidence upon which the FamilyCourt Judge could reasonably have reached the view that his "sense of the applicantwas that she had no such expectation" to own her own home. Mr Meys refers toMs P's affidavit in the Family Court in which she had set out a mortgage calculationand expressly stated that on her salary at her age she would never be able to afford ahome. Mr Meys submits that the award to Ms P ought therefore to be increased toenable her to receive a sum sufficient to purchase a reasonable home in theNetherlands.[49] Ms P's third ground of appeal is that the Judge placed insufficient weight onthe deceased's previous will and the relation property contracting out payment toMs L. Mr Meys notes that Ms P's will changed dramatically in the six months priorto his death. Mr Meys refers to the weight attached to an earlier will in Harrison vHarrison,27 submitting that the grandchildren in that case had a greater moral claimon the estate than the grandchildren in this case (whom the deceased had only mettwice prior to his death). Mr Meys further submits that there can be no question thatup until six months before the deceased's death, the grandchildren could not haveargued they were entitled to more than $300,000 (being the amount in theDecember 2016 will to be held by their mother on trust for their future education).[50] Mr Meys further submits that the Judge erred by placing little weight on the$500,000 payment to Ms L, and apparently no weight on the irrational fight betweenthe deceased and Ms P upon the latter's departure from New Zealand, which led to thedramatic change between the deceased's last two wills.[51] Under Ms P's fourth ground of appeal, she says that the Judge erred in failingto order that the incidence of the award should also include Ms L's share of the estate.Ms P submits that the Judge erred by speculating that a life interest for Ms L in theNewmarket apartment would not have met the deceased's presumed intention toensure comfortable accommodation for his widow. Mr Meys points to observationsof the Court in TB v JB to the effect that breaches of moral duty can be addressed byawarding a life interest only in the real property in issue, rather than a freeholdinterest.28 Mr Meys submits that the Judge did not refer to or appear to take intoaccount the relatively short duration of the deceased and Ms L's marriage whenconsidering whether a life interest would be appropriate. Mr Meys also submits thatthe Judge failed to consider or refer to Ms L's own view that she would have beenhappy to receive only the $500,000 agreed relationship property sum. Mr Meys alsonotes that a reason often cited for rejecting a life interest, namely requiring an ongoingrelationship between (for example) a step-parent occupant and owner children, doesnot arise in this case, given the executor of the estate is a professional and thus thearrangement would not result in any communication between Ms L and Ms P.[52] Finally, Mr Meys submits that the Family Court Judge did not consider s 7 ofthe Act, which provides that unless the Court otherwise determines, the incidence ofany payment ordered should fall rateably upon the whole estate. Mr Meys submits27 Harrison v Harrison (2007) 26 FRNZ 532 (HC).28 TB v JB [2014] NZHC 1478, [2015] NZFLR 9.that the Family Court judgment does not expressly exclude Ms L's share of the estatefrom the incidence of the award, rather it is left to implication and without express orgood reasons given for displacing the s 7 presumption. Mr Meys submits that duringclosing submissions at trial, the Judge discussed his thoughts with counsel and statedthat he was unsure how Ms L would be able to make any contribution that she wereordered to pay, should she retain the Newmarket apartment and instead make acontributing payment to the award to Ms P (on a proportionate basis). Mr Meys saysthat there was evidence before the Judge as to Ms L's financial position, which wascontrary to any suggestion that she would be unable to contribute to such a payment.Submissions for Ms L[53] As noted, Ms L supports the Family Court judgment. Ms Grant submits thatthe award to Ms P was generous, given the limited and difficult relationship betweenher and her father over many years, the gifts Ms P received from the deceased duringhis lifetime, together with legacies left to her from both her mother and stepmother, aswell as her relatively comfortable financial position.[54] Ms Grant submits that the authorities referred to by Mr Meys (concerningclaims between grandchildren and parents) are irrelevant, given it is not for Ms L orthe grandchildren to justify the bequests made to them as beneficiaries of the estate.Once that distinction is properly understood, Ms Grant submits there is no basis tointerfere with the award. She says that the Family Court judgment appropriatelyrespects the deceased's wishes, does the least possible damage to the express terms ofhis will, whilst making generous provision for Ms P in light of the admitted breach ofmoral duty. She distinguishes this case from those such as Cartwright v Joseph,29being a case of actual child neglect by the deceased, and also cases where the claimanthas clear and significant financial need.[55] In relation to the argument that the award should have been sufficient to enableMs P to purchase a house, Ms Grant says this is a "recast" of how Ms P's claim wasframed in the Family Court. Ms Grant points to evidence before the Family Courtwhich she says is contrary to the suggestion Ms P definitely wished to purchase her29 Cartwright v Joseph [2018] NZHC 2383.own home, and notes that Ms P had been renting for 12 years in any event. Ms Grantrefers to the Court of Appeal's decision in Henry v Henry,30 in which it stated that itwould be wrong to suggest that an earlier decision of that Court (Auckland CityMission v Brown)31 was authority for the proposition that the provision of sufficientmoney to a child of the deceased to purchase a home and provide a contingency fundis a benchmark or default standard. Ms Grant also took me to evidence which she saysdemonstrates that the award in this case would be sufficient to purchase a reasonablehome in the Netherlands in any event.[56] On the third ground of appeal, Ms Grant notes that Judge Ryan expressly statedthat the assessment of quantum of the award could be informed by the provision thedeceased made for Ms P in his December 2016 will. Ms Grant submits that the Judgedid not err in not giving greater weight to the penultimate will, as there was nochallenge to the validity of the final will and therefore the Judge correctly confinedhimself to intervening as little as possible in its provisions. Ms Grant further submitsthat as the estate was large enough to do justice between the parties, the Judge was notrequired to reduce Ms L's share of the estate. Ms Grant further submits that as the$500,000 payment to Ms L did not form part of the estate, it was proper that it was notgiven significant weight.[57] Finally, Ms Grant submits that converting Ms L's interest in the apartment to alife interest would be a significant rewrite of the will which was not justified on thefacts of this case. Again, given the size of the estate and that an award to Ms P couldbe accommodated in other ways, Ms Grant says there was no error in excluding thebequests to Ms L from the incidence of the award.Submissions for the grandchildren[58] Ms Clarisse, counsel for M and litigation guardian for J, endorsed Ms Grant'ssubmission that neither of the grandchildren should be required to provide anexplanation to the Court of what amount is reasonable for them to receive under thewill, given their grandfather intended to make them both the residual beneficiaries of30 Henry v Henry [2007] NZCA 42 at [58].31 Auckland City Mission v Brown [2002] 2 NZLR 650 (CA).his estate. On this basis, Ms Clarisse submits that after considering Ms P's claim, theaward granted to her should be no more than is necessary to repair the breach of moralduty. She submits that the Judge's award was more than sufficient to do so.[59] In this way, Ms Clarisse emphasises that the Court on appeal is not being askedto apportion the estate between minor grandchildren and their own living parent, butrather is asked to assess whether the provision made by the Family Court to repair themoral breach of duty to Ms P is sufficient for her proper maintenance and support.Ms Clarisse submits that for this reason, cases such as H v J and Fraser v O'Grady arereadily distinguishable.[60] Ms Clarisse makes similar submissions to Ms Grant in relation to Ms P'ssecond ground of appeal, emphasising that the provision of sufficient money topurchase a home is not a benchmark or default standard in claims of this kind. Inconsidering the evidence and concluding that Ms P had no expectation of owning herown home, Ms Clarisse submits that the Judge cannot have been said to have appliedan incorrect legal principle, or taken into account irrelevant considerations or failed totake into account relevant considerations (being the test on an appeal from an exerciseof discretion). Ms Clarisse also submits that Harrison v Harrison,32 relied on by Ms P,is distinguishable, given the issue determined by the Court in that case was whetherthe testator lacked testamentary capacity, rather than a claim for provision under theAct.[61] Ms Clarisse confirmed that she did not have instructions on behalf of thegranddaughters to make submissions on Ms P's remaining grounds of appeal.AnalysisIntroduction and general observations[62] As noted earlier in this judgment, all counsel were agreed that the deceasedhad breached his moral duty to make provision for Ms P. Accordingly, the thresholdissue to be determined in accordance with the statement of principle in Talbot v Talbot32 Harrison v Harrison (2007) 26 FRNZ 532 (HC).was met.33 The remaining enquiry before the Family Court was therefore what remedyshould be granted. This involved the Judge exercising his discretion. I remind myselfof the limitations on an appeal against the exercise of a discretion (see [35] above).[63] I also remind myself that, as beneficiaries under the will, it is not for thegrandchildren or Ms L to justify the bequests the deceased made to them. Accordingly,so long as the award made by the Judge was sufficient to remedy the deceased's breachof moral duty to Ms P, the deceased's wishes ought not to be disturbed.[64] For the reasons set out in the balance of this judgment, I am not persuaded thatthe Judge erred in making the award he did in favour of Ms P. In my view, the awardfell well within the range available to the Judge on the correct application of the legalprinciples to the evidence before him. The increase from receiving chattels valued ataround $10,000 to an award of approximately $700,000 involves a significant changeto the deceased's will and, if anything, was in my view somewhat generous.[65] Before turning to the four specific grounds of appeal, it is helpful first toaddress certain aspects of Ms P's submissions, which in my view are ultimately acomplaint that the outcome of the Family Court judgment is unfair.[66] Mr Meys urged the Court to put itself "in the shoes" of the person who hassuffered the moral breach when considering what is necessary to remedy the damagedone. Mr Meys said that Ms P views the Judge's decision as endorsing her father'sviews about her parenting abilities.34 Mr Meys also submitted that if Ms P is ultimatelyawarded less that Ms L, she would be "shocked", given it signals to Ms P that herwhole life as a daughter to the deceased is worth less than Ms L's 25 months with him.[67] But this approach looks at the issue through the wrong lens. As the authoritiesmake clear, general notions of "fairness" do not come into the exercise of the33 Talbot v Talbot [2017] NZCA 507, [2018] NZFLR 128 at [37].34 The submission being that "[Ms P] cannot understand why her father's spiteful change fromleaving almost everything to [her], to instead leaving approximately two thirds of it to her children,is being respected by the Court."discretion on claims of this type, even if the Court does not agree with what the testatorhas done. As Blanchard J stated in Williams v Aucutt:35It is not for the Court to be generous with the testator's property beyondordering such provision as is sufficient to repair any breach of moral duty.Beyond that point the testator's wishes should prevail even if the individualJudge 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 becauseof a perception that it is unfair. Testators remain at liberty to do what they likewith their assets and to treat their children differently or to benefit others oncethey have made such provisions as are necessary to discharge their moral dutyto those entitled to bring claims under the Family Protection Act.[68] This was reiterated by the Court of Appeal in Henry v Henry, in whichO'Regan J (delivering the judgment of the Court) stated:36Broader questions of desirability of greater awards or the Judge's views offairness should not come into play.[69] The Judge's award in this case does not reflect on Ms P's parenting skills(indeed, the Judge expressly complimented Ms P in this respect),37 or make anyassessment of or judgment about the comparative "importance" to the deceased ofMs P and Ms L respectively. Rather, the award is what the Judge considered to be theleast "interference" with the deceased's intentions as possible, but what was sufficientto remedy the breach of moral duty to Ms P.[70] Against this backdrop, I turn to the four grounds of appeal advanced by Ms P.As noted, Mr Meys confirmed that the first ground of appeal is the primary ground.First ground of appeal[71] The focus of this aspect of the appeal is not the quantum of the award per se.Rather, the core complaint is how the award to Ms P measures as against the resultingaward to each of her children. Ms P's case is that the Judge erred in awarding onethird of the residue to Ms P and thereby equating her share with that of each of herchildren.35 Williams v Aucutt [2000] 2 NZLR 479 (CA) at [70].36 Henry v Henry [2007] NZCA 42 at [58].37 At [62].[72] I accept Mr Meys' submission that equal division of an estate is a morecommon approach when determining competing claims by adult siblings, or betweenadult siblings on the one hand and a step-parent on the other. And as noted at [40]above, the authorities suggest it will often be difficult for grandchildren to advance asuccessful claim on an estate in the context of a competing claim by their living parent.Mr Meys relies in particular on observations to this effect by Fisher J in Fraser vO'Grady.38[73] But I do not consider those authorities, including Fraser v O'Grady, to be ofdirect relevance to this case. In Fraser v O'Grady, the grandchildren of the deceasedmade a claim for provision from their grandmother's estate, the sole beneficiary ofwhich was the deceased's brother. Fisher J referred to earlier authorities whichconfirmed that it is often difficult for a grandchild to establish a claim where thegrandchild's parent is a living child of the deceased.39 While in Fraser v O'Grady theclaimants' parent (that is, the deceased's child) had died some years earlier, Fisher Jnoted that neither grandchild had made any contribution to their grandmother's estateor provided significant assistance to her during her lifetime. Fisher J also took intoaccount that each of the grandchildren had been and would be well provided for fromsources other than the deceased's estate. The underlying relationship ofgrandparent/grandchild was therefore the primary basis upon which the claim wasmade. In the event, Fisher J found that while there was a moral duty on the part of thedeceased to her grandchildren, it was a weak one. The Judge concluded that a modestaward only was required to remedy that breach, and made an award of $20,000 infavour of each grandchild.[74] The present case is materially different to Fraser v Grady (and other similarauthorities). Most importantly, the deceased's grandchildren do not make a claim ontheir grandfather's estate. Rather, the deceased expressly made (significant) provisionfor each of them in his will. I reiterate that it is not incumbent upon a beneficiary of awill to justify the bequest made in his or her favour. Instead, the central question inthis case remains what is required to remedy the deceased's breach of moral duty toMs P, while respecting the deceased's wishes as much as is possible. I therefore do38 Fraser v O'Grady HC Auckland M262/96, 20 May 1997 at 4.39 At 4.not consider the Judge erred in not adopting the approach often taken whendetermining a grandchild's claim to an estate.[75] Mr Meys also placed significant reliance on H v J, and submits that a similarapproach would have been appropriate in this case, yet the Judge did not refer to thatdecision in his judgment.40[76] I accept Mr Meys' submission that, in a broad sense at least, the facts in H v Jare closer to those arising in this case. In H v J, the deceased had made expressprovision in her will for her grandchildren. In fact, she had left the entirety of herestate (valued at approximately $90,000) to her three grandchildren in equal shares,and made no provision for her daughter (the claimant). At the time of the deceased'sdeath, she and the claimant were estranged. The Family Court Judge found that bothparties had contributed to the state of the relationship. Nevertheless, the Judge foundthat the claimant had assisted her mother over the years, providing her (and herhusband) with accommodation for 10 years and also guaranteeing a loan for anownership flat. The claimant (and her husband) were also in a somewhat difficultfinancial position, being superannuants with virtually no assets as a result of criminalactivity by one of their sons. The Judge also took into account that some years beforetheir grandmother's death, each of the grandchildren had received a gift of $9,000from her.[77] There was no dispute in H v J that there had been a breach of moral duty toclaimant. The question was therefore what was required to remedy that breach. Inbalancing all relevant matters, including those referred to at [76] above, the Judgeawarded the claimant 50 percent of her mother's estate, with the remaining 50 percentto be divided equally between the grandchildren. In reaching this result, the Judgeexpressly recognised that because the estate was relatively small, it was not possibleto do justice to all parties.41[78] The facts in the present case are, in my view, materially different to those inH v J. First, the deceased's estate is much more substantial and is, as noted by the40 H v J FC Nelson FAM-2007-042-200, 8 June 2007.41 At [12].Judge, sufficiently large to accommodate the various moral claims to it. Second,Ms P's financial position does not compare in my view to that of the claimant in H v J.I also take into account the not insignificant bequest to Ms P from G's estate, a pointthat will have been known to the deceased. Third, and while the relationship betweenMs P and her father had rekindled in more recent times, there is no suggestion Ms Pprovided any significant financial or other similar support to her father during hislifetime. While that is of course partly a function of distance between the parties, it isalso no doubt a function of the fractured and sometimes difficult relationship betweenthem. As the Judge noted, while the reason for the breakdown in the relationship laypredominantly with the deceased, Ms P herself was not wholly without blame.[79] Standing back, I do not consider that the way in which the Judge structured thesharing of the residue of the estate to be irrational or unreasonable, in the sense thathis decision was plainly wrong. Rather, the Judge adopted the orthodox approach oflooking to leave the deceased's intentions (including to leave substantial gifts to hisgrandchildren) intact as much as was reasonably possible, while making an awardsufficient to remedy the deceased's breach of his moral duty. Indeed, in concludingthat the incidence of the award to Ms P should only affect the bequests to her children,the Judge may well have had in mind the principles noted in the authorities referred toby Mr Meys. For instance, the Judge expressly noted that it was appropriate in hisview to reduce the amounts left to the grandchildren given "in the normal course ofevents they can expect to inherit from their mother whatever may be left of heraward in the future."42 I am also mindful that the deceased's bequests to hisgrandchildren will indirectly provide for Ms P. They will relieve her (to a certainextent) from the need to financially support her two children as they enter earlyadulthood.[80] For these reasons, the first ground of appeal must fail.Second ground of appeal[81] Ms P's second ground of appeal is that the Judge erred in his understandingthat the award made in favour of Ms P amounted to approximately 23 percent of the42 At [62].deceased's estate. Mr Meys notes that the Judge considered the breach of moral dutyin this case to be serious, and plainly intended for the actual award to Ms P to be verynear or at the top of the available range. As noted, Mr Meys submits that on the basisof updating evidence about the valuation of the Newmarket apartment, the award tothe deceased reflects only some 19 percent of the estate.[82] The second aspect of this ground of appeal is that the award is insufficient toenable Ms P to purchase her own home (debt free) in the Netherlands.[83] Turning to the value of the Newmarket apartment, the uncontested evidence inthe Family Court was that it had a value of $925,000. Ms P sought leave to file furtherevidence on the appeal, being valuation evidence that as at November 2020, theapartment's value is now $1.175 million. On the basis of that valuation, the overallproportion (by value) of the estate left to Ms L increases and Ms P's share decreases(as noted from 23 percent to 19 percent).[84] Ms L did not oppose leave to being granted to adduce this further evidence,though Ms Grant stated that if it were admitted, she would want to cross examine thevaluer about his evidence. Ms Grant also sought leave for Ms L to file two affidavitsin reply, which raised concerns about the manner in which the valuer had gone abouthis valuation, and relevant matters he had not taken into account but ought to have.43[85] In the event, with agreement by counsel, I granted leave for all these materialsto be filed on the appeal. A difficulty arose, however, in that the valuer who hadprovided the affidavit for Ms P was not available to attend the hearing and be cross-examined.[86] In the ordinary course, evidence directed to a change in the value of the estatebetween the hearing of the first instance application and any appeal should only beadmitted on the appeal if it demonstrates a reasonably significant change in value – atleast to an extent relevant to the appeal court's assessment of the appeal. For example,in Little v Angus, the Court of Appeal took into account the appreciation in value of an43 Being leaky building issues and the prospect of a development to the south of the building, whichwould have significant adverse impacts on the views from the apartmentestate between the date of the High Court hearing and the hearing in the Court ofAppeal, because the increase in value made it abundantly clear that the estate wasample to satisfy the needs of the beneficiary under the will and his family.44 Ms Grantalso directed me to Re Wakarua, which at first instance had involved a very modestaward based on the value of the estate as at the date of death, but which was revisitedas a result of a significant increase in value by the date of the hearing.45[87] The suggested increase in value in this case, however, is not particularlysignificant. Further, the valuer was not available to be cross-examined on the pointsraised in Ms L's reply affidavits.[88] The Newmarket apartment may well be worth a little more now than it was atthe time of the Family Court judgment, given the passage of time (which would likelybe the case in many if not most estates which include real property). Conversely, theapartment may be worth less if the suggested issues concerning leaks and nearbydevelopment are taken into account. In the absence of either agreement on the increasein the apartment's value, or the opportunity for contested evidence on that topic tohave been properly tested, I do not put any real weight on the updating evidence.[89] On this basis therefore, and even if I were to assume a modest increase in theapartment's value (with the result, for example, that the award to Ms P sits around the20 percent mark), revisiting the Judge's award would in my view be "tinkering", andthus inconsistent with the proper approach to an appeal of this kind.[90] Turning to the submission that the Judge erred in not making an awardsufficient to enable Ms P to purchase a property in the Netherlands debt free, I do notagree. The Judge recorded that he had been invited to make an award sufficient topurchase a home of a reasonable standard in the Netherlands. I accept Mr Meys'submission that there was no particular evidence before the Court about theexpectations in Europe as to home ownership generally. But having read the evidenceand notes of evidence, it does not appear to me that Ms P's claim was advancedpredominantly on the basis that she should be awarded enough to purchase a home in44 Little v Angus [1981] 1 NZLR 126 (CA) at [70].45 Re Wakarua (1989) 4 FRNZ 650 (HC) at 652-653.the Netherlands debt free. It is correct that in her affidavit, Ms P set out a mortgagecalculation and stated that on her salary at her age, she would never be able to afforda home. But the question of (debt free) home ownership does not appear to haveloomed large at the hearing.[91] Further and more importantly, I do not accept that the Judge erred in any eventin not making an award which would enable Ms P to purchase her own home in theNetherlands debt free. Despite the approach taken by the Court of Appeal in AucklandCity Mission v Brown,46 it is clear that that decision does not stand for the propositionthat a child of a testator ought as a matter of principle receive an award sufficient toenable them to purchase (debt free) a suitable home for them and their family.47Indeed, a reading of the Court of Appeal's decision makes it clear that the award inthat case was (unsurprisingly) tailored to the specific facts before the Court. Inaddition, the total provision made to the daughter amounted to a little under 20 percentof the testator's estate (and reflected a significant reduction to the award that had beenmade in the High Court). The award to Ms P in this case therefore comparesfavourably to the outcome in Auckland City Mission v Brown.[92] The second ground of appeal must also fail.Third ground of appeal[93] To recap, Ms P submits that the Judge put insufficient weight on the deceased'sprevious will and the relationship property agreement between the deceased and Ms L.[94] In relation to the deceased's previous will, Mr Meys relied predominantly onthis Court's decision in Harrison v Harrison.48 In that case, the care of the deceasedhad been overtaken by the testator's grandchildren, following an assault against thedeceased by his only son (the claimant). The deceased's new will excluded theclaimant and left the entirety of the estate to the grandchildren. The claimant opposedprobate being granted on the new will (on the basis the deceased lacked testamentary46 Auckland City Mission v Brown [2002] 2 NZLR 650 (CA).47 See, for example Henry v Henry (2007) NZCA 42 at [78].48 Harrison v Harrison (2007) 26 FRNZ 532 (HC).capacity), but if the new will was granted probate, the claimant made a claim underthe Act for provision from the estate.[95] Simon France J determined the matter on the basis of a lack of testamentarycapacity and undue influence. It was in the context of the capacity argument that theJudge contrasted the position under the new and old wills, and made the particularobservations upon which Ms P relies.49 I therefore do not accept Mr Meys' submissionthat the Court considered the "overlapping factors" for the probate and FamilyProtection Act claims together, or that the Judge's reasoning on the capacity issue isof direct relevance in this case.[96] It is correct, however, that the Judge made some observations (albeit brief) onthe claim for proper maintenance and support. His Honour noted that on the facts ofthat case, the claimant had the primary moral claim to support, and that his claim was"irresistible". With respect, that must be correct. The claimant was 73 years of age,living in rented accommodation with his only income being National Superannuation.As a result, he had had an "encouraged dependency" on support from his parents overan extended period of time.50 The moral duty owed by the testator to the claimant was,therefore, a "duty that all past wills, other than the one held to be invalid, haverecognised."51 In that context, the Judge noted that either of the testator's earlier willswould have met the duty owed to the claimant.[97] But I do not see these observations as being of any direct relevance to thepresent proceedings, and they certainly do not suggest the Judge fell into error inmaking the award he did. As noted, there was no dispute that the deceased owed Ms Pa moral duty. There is also no doubt that the deceased's December 2016 willrecognised and would have satisfied that duty. But that does not itself say anythingabout what is required in the present circumstances to remedy the breach of duty underthe deceased's last will. In particular, it cannot be drawn from Harrison v Harrisonthat the only appropriate means of remedying the duty in this case would be to resort49 Namely that the testator did not understand the competing claims he had to weigh in the balance,and what he did in his new will was "not affirming, or adjusting, his assessments, but was totallychanging them". (At [68].)50 At [102].51 At [102].to the terms of the deceased's earlier will.52 In other words, it would not be appropriateto view the provision made in an earlier will as some kind of yardstick or benchmarkas to the minimum amount required to remedy a breach of moral duty in the contextof a later will. This is particularly so when a testator, with capacity, has made adeliberate choice to alter the distribution of his or her estate.[98] The Judge was nevertheless plainly aware of and took into account the termsof the deceased's earlier will, expressly noting that the assessment of quantum of theaward to Ms P could be "informed" by the provision in that will.53[99] Ms P also submits that "there can be no question that up until 6 months before[the deceased's] death the grandchildren could not have argued they were entitled tomore than $300,000".54 But this again considers the issue through the wrong lens. Forthe reasons traversed, it is not for them to justify the higher bequest made to them, orfor the Court to consider and rule on the appropriateness of the change between thetwo wills.[100] Accordingly I discern no error in the Judge's approach to the deceased's earlierwill.[101] As to the argument that the Judge ought to have ascribed additional weight tothe $500,000 payment to Ms L, Mr Meys did not make any substantive submissionson this point, other than suggesting that the Judge erred by placing little weight on theRPA agreement. But the $500,000 amount did not form a part of the deceased's estateand therefore was not of direct relevance to the incidence of the award made in Ms P'sfavour. Further, the size of the estate meant that it was possible for the deceased tomeet his duty to Ms P while still satisfying his desire to recognise and provide forMs L and his grandchildren. The Judge correctly noted that it was not for Ms L tojustify what she had inherited pursuant to the deceased's will. Nor was it incumbenton her to justify arrangements made between herself and the deceased externally tohis will; there was no claim, for example, of undue influence by Ms L. For these52 Harrison v Harrison (2007) 26 FRNZ 532 (HC).53 [P] v Lucas [2020] NZFC 7118 at [54].54 The amount to be held on trust for them pursuant to the terms of the deceased's earlier will.reasons, I am not persuaded the Judge erred in his approach to the relationship propertyagreement.[102] The third ground of appeal is dismissed.Fourth ground of appeal[103] As noted earlier, Ms P's fourth ground of appeal is that a life interest grantedto Ms L in relation to the Newmarket apartment would have been sufficient to addressher moral claims.[104] Mr Meys refers in this context to TB v JB, in which the Court stated that:55 Mr B's breach of moral duty here could be addressed in another way. Thiswould be to award only a life interest in his estate to Mrs B with a gift over ofthe residuary estate to S1, J, S2, C and M on her death. This alternative remedyis often regarded as appropriate in family protection claims where the conteston the death of one parent, for example a father is between, on the one hand,his natural children and on the other, his second spouse, their stepmother.(emphasis added)[105] I accept, however, counsel for Ms L's submission that as the deceased's estatewas large enough to do justice between the parties, the Judge did not need to resort tointerfering with the deceased's clear intention to gift a freehold interest in theNewmarket apartment to Ms L. It also cannot be suggested that the Judge did notconsider this option, expressly stating in his judgment that he had done so, thoughconcluding that it would involve too significant a rewrite of the deceased's will.56[106] Further, I do not consider the courts should too readily convert a bequest ofownership of property to one of a life interest only, particularly when there are otherreasonable options available for distribution of the estate (as there were in this case).Freehold ownership versus a life interest are quite different propositions, and can leavefamily members in dispute "tied" to each other for many years into the future. In thiscase, Ms L is in her fifties. Granting a life interest in this case would require the estateto be responsible for administering the apartment potentially for many years to come.55 TB v JB [2014] NZHC 1478, [2015] NZFLR 9 at [73].56 [P] v Lucas [2020] NZFC 7118 at [60].[107] Ms P also refers to s 4A of the Family Protection Act 1955, which placesrestrictions on the orders a court can make in the context of de facto relationships thathave lasted less than three years. I accept that the relationship between the deceasedand Ms L was relatively short, spanning a period of just over two years. But there isalso no doubt that it was a fairly intense relationship, and involved Ms L caring for thedeceased on a 24/7 basis. I accordingly I do not consider the Judge erred or failed totake into account any relevant considerations in this regard. He was plainly alive tothe nature of the deceased and Ms L's relationship and observed that while "she mayhave made the most of her opportunities as they presented themselves",57 she was notto be criticised for that. The Judge ultimately concluded that:58There is no doubt she provided companionship, care and attention to thedeceased from the moment she moved in with him. Her tasks became onerousand difficult the more unwell and incapacitated he became. His words at theirwedding demonstrated the feelings he had for her and he was entitled toprovide for her in the manner he did.[108] Finally, Ms P submits that the Judge did not consider s 7 of the Act or expresslyexclude Ms L's share of the estate from the incidence of the award to Ms P.[109] Section 7 of the Family Protection Act 1955 relevantly provides as follows:7 Incidence of payments ordered(1) The incidence of the payment or payments ordered shall, unless thecourt otherwise determines, fall rateably upon the whole estate of thedeceased, or, in cases where the authority of the court does not extendor cannot directly or indirectly be made to extend to the whole estate,then to so much thereof as is subject to the authority of the court.(2) The court shall have power to exonerate any part of the deceased'sestate from the incidence order, after hearing such of the parties whomay be affected by the exoneration as it thinks necessary, and may forthat purpose direct any administrator to represent, or appoint any personto represent, any such party.(emphasis added)57 At [58].58 At [58].[110] The Court's discretion to exclude any part of the deceased's estate from theincidence of an award is a wide one, to be exercised according to "the rules of reasonand justice"59 and with due regard to the circumstances of the case.60[111] Mr Meys submits that during his closing submissions at trial, the Judgeexpressed the tentative view that he was unsure how Ms L would be able to make anycontribution that she were ordered to pay, and that Mr Meys had emphasised that nosuch assumption about Ms L's inability to meet a small award could safely be made.But this is an appeal against Judge Ryan's judgment. It is not an appeal against(undocumented) comments the Judge made during his interactions with counsel. Inother words, it is not appropriate to go behind the contents of the judgment and thereasoning contained in it.[112] While the Judge did not state in express terms that he excluded the bequests toMs L from the incidence of the award, that is plainly the effect of the conclusion hereached and the formal orders he made. His reasoning for this is also clear. Hetraversed in some detail the relationship between the deceased and Ms L, recognisedthe significant care and support she provided to him in the last years of his life, tookaccount of the depth of the deceased's feelings and gratitude to her (as expressedduring their wedding) and took into account the deceased's intention and desire forMs L to have the apartment in Newmarket. Overall, the Judge concluded that:61Looking at the overall picture of the result of this award I am satisfied thatorders in these terms makes as little interference with the testator's intentionas possible, especially in relation to his widow and still reflects ultimately hisdesire to help his two granddaughters establish themselves in their earlyadulthood.(emphasis added)[113] I therefore do not accept that excluding Ms L's bequests from the incidence ofthe award was in error, or that the Judge did not give sufficient reasons for why headopted that approach.59 Sharp v Wakefield [1891] AC 173, at 179, per Lord Halsbury.60 Re Swanson (deceased) [1976] 2 NZLR 27 (SC) at 30.61 [P] v Lucas [2020] NZFC 7118 at [63].Result and costs[114] For the above reasons, Ms P's appeal is dismissed.[115] The parties did not address me on costs. Should they not be able to agree oncosts, any party seeking costs may file a memorandum within 15 business days of thedate of this judgment. The remaining party/parties may then file a memorandum inresponse within a further five working days. I will thereafter determine costs on thepapers. No memorandum is to be longer than three pages in length.____________________________Fitzgerald J