BELINDA BROWN v NICHOLAS BROWN AND ROBERT NAREV AS EXECUTORS AND TRUSTEES OF THE ESTATE OF RICHARD BROWN [2022] NZCA 476

BELINDA BROWN v NICHOLAS BROWN AND ROBERT NAREV AS EXECUTORS AND TRUSTEES OFTHE ESTATE OF RICHARD BROWN [2022] NZCA 476 [10 October 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA333/2021[2022] NZCA 476BETWEEN BELINDA BROWNAppellantAND NICHOLAS BROWN AND ROBERTNAREV AS EXECUTORS ANDTRUSTEES OF THE ESTATE OFRICHARD BROWNFirst RespondentAND NICHOLAS BROWNSecond RespondentHearing: 28 July 2022Court: Miller, Clifford and Dobson JJCounsel: M G Locke for AppellantNo appearance for First RespondentA H Waalkens KC and S A Beattie for Second RespondentNo appearance for the Executors and TrusteesJudgment: 10 October 2022 at 10.00 amJUDGMENT OF THE COURTA The appeal is dismissed.B Costs are reserved.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)TABLE OF CONTENTSIntroduction [1]The family circumstances [5]The testator [5]Testator's children and grandchildren [10]The estate and the testamentary provisions [20]The claims [26]Evidence on preparation of the codicil [38]The High Court judgment [39]Arguments on appeal [51]Applicable principles [60]Analysis [66]Result [79]Introduction[1] This appeal is brought by one of a number of claimants for provision out of theestate of Richard Brown (the testator), under the provisions of the Family ProtectionAct 1955 (the Act). The appellant (Belinda) is one of eight grandchildren of thetestator.1 Belinda's mother, Danielle, was one of two daughters of the testator (theother being Sarah), both of whom claimed for greater provision out of the estate thanwas provided for them. Sarah's son (Brodie) who received a gift of $15,000 from theestate also sought further provision.[2] All their claims were unsuccessful.2 Belinda is the only applicant to havepursued an appeal.[3] The Court's jurisdiction to order provision out of a deceased's estate or on anintestacy is derived from s 4(1) of the Act, which provides as follows:(1) If any person (referred to in this Act as the deceased) dies, whethertestate or intestate, and in terms of his or her will or as a result of hisor her intestacy adequate provision is not available from his or herestate for the proper maintenance and support of the persons by whomor on whose behalf application may be made under this Act, the courtmay, at its discretion on application so made, order that any provisionthe court thinks fit be made out of the deceased's estate for all or anyof those persons.1 The High Court anonymised the names of the participants, having regard to the nature of some ofthe allegations made against the testator. We adopt the same assumed names.2 Brown v Brown [2021] NZHC 1045 [Judgment under appeal].[4] There was affidavit evidence before the High Court. None of the deponentswere called for cross-examination. Most of Gordon J's factual analysis is not now inissue. It is accordingly sufficient to take the factual background largely from thethorough analysis in the judgment under appeal.The family circumstancesThe testator[5] In 1951 the testator and his girlfriend (Delia) married, with family support, atthe age of 17 or 18 years. Their child, Danielle, was born in 1952. The testator andDelia's second child, Nicholas, was born in 1953 and a second daughter, Sarah, wasborn in 1957. There was some uncertainty as to precise dates and ages because ofinconsistencies in the evidence, but nothing turns on it. It appears that they are nowrespectively about 70, 69 and 65 years old.[6] The testator set up a manufacturing business in the early years of their marriedlife which ultimately became very successful. He devoted a lot of effort to the businessand worked long hours. He and Delia separated in or about 1967. After that eventDanielle lived with her mother and Sarah initially lived with her father, but followingcontested custody proceedings she also lived with her mother. Nicholas lived with hisfather.[7] The testator married his second wife (Catherine) in 1979. Catherine had twosons by a previous marriage.[8] The testator executed his final will in March 2011 and after numerousconsultations with his solicitor, completed a codicil to it in July 2018. He died inAugust 2018.[9] Catherine has survived the testator. She was described at the time of theHigh Court hearing as being "not well".3 She completed an affidavit in support of herstepson Nicholas' defence of the claims in the proceedings.3 At [21].Testator's children and grandchildren[10] In explaining the family relationships and provisions in the testator's will andcodicil, the Judge annexed to her judgment a diagram outlining the relationships andprovisions. There has been no challenge to its accuracy and we gratefully adopt andannex that diagram at the end of our judgment.[11] Danielle, the appellant's mother, would have been approximately 15 years' oldwhen her parents separated. She had little contact with the testator after that. Daniellelived in Sydney for a short time where her first daughter, Anna, was born in 1972.At the age of 11 Anna was adopted out.[12] Danielle had two further daughters: the appellant in this appeal; Belinda, whowas born in 1974; and Rachel who was born in 1985. Danielle has been married twicebut at the time of the High Court hearing was living on her own in a home that she hadpurchased. She had mostly provided for herself financially since leaving home.Her father is not a presence in her life.[13] In March 1996, Danielle made allegations of sexual, physical andpsychological abuse during her childhood against the testator. Her solicitor's letterclaimed $1.5 million as compensation for the harm. The testator denied the allegationsand later that same year a settlement was reached pursuant to which the testator paidDanielle $20,000 without accepting any substance in the claims she had made.An acknowledgement signed by Danielle in return for that payment stated:I accept my father's denials of any wrong conduct. I unreservedly withdrawthe allegations of abuse and neglect made by me and acknowledge they wereunjustified. I undertake not to raise these hurtful allegations again.[14] Danielle did in fact rely on those allegations of abuse in the High Court in thepresent proceeding, seeking to prove that she had been abused. Much of the judgmentunder appeal is concerned with this issue.4 She claimed that his hatred for her meantthat she was shut out of his life and disadvantaged relative to her siblings.4 At [101]–[164].[15] Sarah, the testator's younger daughter, maintained contact with the testatorafter her parents separated. Despite Delia being awarded custody of her, she workedfor the testator in the holidays at his factory and lived with him for a period prior tohis second marriage to Catherine in 1979, at which time Sarah moved out. Sarah wasthen aged 23 and was working for the testator. In 1981 she had a daughter, who wasadopted out. Sarah married in 1984 and had a son, Brodie, in 1985. That child wasthe testator's first grandson. Sarah and her husband separated in 1987 and she enjoyedsupport from the testator for many years thereafter.[16] In 1999 the testator settled the E Trust for the benefit of Sarah and Brodie.That trust has purchased different properties as homes for Sarah and Brodie from timeto time and at the time of the High Court hearing Sarah continued to live in a houseowned by the E Trust. Sarah was paid a weekly allowance by the testator.We summarise Brodie's position in dealing with his claims at [29]–[34] below.[17] The testator's son, Nicholas, was born in 1953 and the two enjoyed a very closerelationship until the testator died. Nicholas worked with the testator in the schoolholidays and went to work permanently in the testator's business after he left school.He became the general manager of the business from about 1980. His evidence wasthat he was not paid anything like a fair wage for the work he was performing until arestructuring of the business was undertaken by the testator around 1985. Nicholasagreed to buy his father out of the business over a period of five or six years.From then until the business was closed in 1999 Nicholas deposed that the testatorremained involved, giving him guidance and advice. Further, in the early 2000s whenNicholas set up another business, the testator provided advice and financial support.[18] Nicholas also remained close to his stepmother. Nicholas had four childrenwho all remained close to the testator. Nicholas is divorced from the mother of hischildren.[19] In 2004 the testator settled the R Trust for the benefit of Nicholas and hischildren.The estate and the testamentary provisions[20] The Judge summarised the estate as having a total value of just over$7.74 million. It comprised:5(a) A half-share in the testator and Catherine's home. As at3 February 2021 the half share was valued at $2.45 million; and(b) A cash balance of $204,000 (in round figures); and(c) Any surplus from the separate estate fund for Catherine (initially$500,000 under the will). From that fund there is a six-monthlypayment of $25,000 to Catherine. The balance of the fund, as atthe date of trial, was $365,000 (in round figures); and(d) A portfolio of five residential properties (not including the homehe and Catherine had occupied) having a total value as atJanuary 2021 of $4.725 million.[21] The cash balance had been reduced by $20,000 to pay out Rachel, the youngestof Danielle's three children, who had settled a claim she had brought against the estateunder the Act.[22] After specific gifts and bequests, the testator had divided the residue of hisestate into eight equal parts. In considering the claims, the High Court conservativelyvalued a one-eighth share in the residue at $306,250.6 Danielle, in pursuing her claim,adopted the figure of $334,000 for a one-eighth share in part because she anticipatedthat the funds set aside for periodic payments to Catherine of $500,000 were likely notto all be used in the provision of six-monthly payments of $25,000.[23] The Judge accurately summarised the effect of the bequests as follows:75 At [22] and [24]. It was accepted at the hearing before us that [22] contains a typo and the assetsin the state are worth $7.74 million, not $7.4 million.6 At [25].7 At [26] (footnotes omitted).(a) Catherine (by survivorship): money in a joint account of$1.82 million, life interest in the home she shared with [the testator],and $25,000 every six months up to $500,000;(b) Danielle: two-eighths of residue (at a minimum $612,500 or possiblyup to $668,000 adopting the figure calculated by Danielle);(c) Nicholas: two-eighths of residue and the five residential propertiesreferred to in [24] above;(d) Sarah: one-eighth of residue (see also gift to E Trust below);(e) Five grandchildren (Nicholas' four children and Danielle's oldestdaughter): one-fifth each of two-eighths of residue. There was noprovision for Danielle's two other daughters, Belinda and Rachel.None of the grandchildren are minors;(f) Brodie: gift of $15,000 (see also gift to E Trust below);(g) E Trust: $100,000 plus one-eighth of residue (Sarah and Brodie andBrodie's son are beneficiaries);(h) R Trust: debt to [the testator] forgiven. ([B]eneficiaries of the R Trustare Nicholas and his four children).[24] Other gifts of $20,000 each were made to Nicholas' former wife and thetestator's two stepsons, namely the sons of his second wife Catherine.[25] Nicholas and an Auckland solicitor are the executors and trustees of thetestator's estate. In his personal capacity as a substantial beneficiary of the estate,Nicholas opposed each of the four claims against the estate that went to hearing.The claims[26] The testator's two daughters, Danielle and Sarah, both sought larger provisionout of the estate. The Judge projected Danielle's existing entitlement from the estateat an amount between $612,500 and $668,000. Danielle claimed that the testatorbreached his moral duty to her when he failed to redress the alleged physical,psychological and sexual abuse he had subjected her to and that the resulting lifetimeestrangement was his fault. As to her needs, she stated that she had "made a modestsuccess of her life".8 She lived in her own home with a relatively small mortgage butis retired and her only income is government superannuation. Danielle's claim for8 At [30].further provision sought a value similar to two of the five properties that had been leftto Nicholas which, when added to the provision already made for her, would amountto a total of some $2.7 to $2.8 million.[27] Sarah was gifted a one-eighth of the residue amounting to approximately$306,000. In addition, she and her son Brodie were beneficiaries of the E Trust whichwas gifted $100,000 in the testator's will. The E Trust also received one-eighth of theresidue. Sarah claimed a close relationship with the testator but Nicholas andCatherine disputed that. As to her needs, she has suffered PTSD and chronicdepression, is in receipt of ACC payments and receives an income of $300 per weekfrom the E Trust. She lives in a home owned by the E Trust.[28] The Judge noted that both Danielle and Sarah have previously made claims inrelation to the wills of other family members. In or about 1995 they both claimedagainst the estate of their paternal grandmother, receiving $10,000 each, and in 2012they each made claims against their mother's estate and were awarded $7,000 each.9[29] Sarah's son Brodie also claimed further provision from the testator's estate.He received a gift of $15,000 under the will and is also a beneficiary in the E Trust.His circumstances were described in affidavits provided by Sarah, with nothing fromBrodie himself. He is described as living in Australia in accommodation provided bya charitable institution. He has an alcohol addiction with occasional relapses requiringhospital treatment and is unemployed.[30] Sarah deposed that therapy offered by Alcoholics Anonymous in New Zealandwould be superior to what Brodie is able to access in Australia, and there is someuncertainty as to whether a minor criminal charge remained outstanding.[31] On Sarah's evidence it appeared that Brodie does not know his biological fatherwho had never contributed to his support. His claim was advanced on the basis thathe has an immediate need for financial assistance. It was also proposed on his behalfthat a new and independent trustee should be appointed to control the E Trust in hisinterests.9 At [14].[32] Sarah claimed that there had been a very close relationship between the testatorand Brodie with the testator paying his private school fees until he reached secondaryschool age. There had also been financial and other support provided by the testatorincluding assistance when Brodie's alcoholism became apparent. However, thatrelationship did not endure.[33] In opposing Brodie's claim, it was submitted for Nicholas that his status as thefinal beneficiary of the E Trust together with the existing legacy were sufficient toprovide for his support.[34] Coming then to the appellant's claim. At the time of the High Court hearingBelinda described herself as a 45-year-old mother of three and a stepmother of anotherchild. She lives in Queensland and works as a registered nurse. The joint incomes ofshe and her husband are approximately $107,000 per annum. Their total assets,including a mortgaged home, are valued at approximately $885,000, offset byliabilities of some $539,000. Belinda was diagnosed with leukaemia in early 2018which required her to take time off work. At the time of the hearing she also neededmore surgery which would require even more time off work. Two of Belinda'schildren still live with her. She sought an award of $625,000.[35] Belinda claims to have had a good relationship with the testator from heryounger years and continuing into her twenties. The positive relationship ended whenher mother, Danielle, made her claims of abuse against the testator in 1996. She statedshe felt it was "morally correct" to support her mother in that matter, with the resultthat the testator became distant from her. She claimed to have made subsequentattempts to contact him but had been rebuffed.[36] Nicholas and Catherine disputed these claims as to the nature of Belinda'srelationship with the testator. Nicholas deposed that Belinda had not shown anyinterest in the testator and Catherine deposed that Belinda had only visited the testatoronce some 30 years ago and that there had not been any contact from her since.[37] It was submitted for Nicholas that if an increased provision was to be made forBelinda, then it ought to be by reducing the larger provision that had been made forher mother, Danielle.Evidence on preparation of the codicil[38] Ann Davidson, a consultant with Sellar Bone, Solicitors in Auckland had takenthe testator's instructions for preparation of a codicil to his 2011 will. Ms Davidsonprovided an affidavit exhibiting the file notes and other documents relevant to thoseinstructions, including notes of the four meetings she held with the testator, in thecompany of his wife Catherine. The notes record Ms Davidson raising the prospectof claims under the Act if Danielle were not included as a residual beneficiary at all,which the testator had raised as an option, and she recorded the testator's reasons forsmaller or no provision for certain family members, including Belinda, with whom heconsidered he had no connection.The High Court judgment[39] The Judge dealt first with Danielle's claim. She held that, on the balance ofprobabilities, Danielle had not discharged the onus in making out the allegations ofabuse.10 The Judge found that Danielle could not be held responsible for herestrangement from her father in her younger years and the issue was whether the willand more particularly the codicil was sufficient to make good the consequences oftheir estrangement.11 In explanation for the provision that had been made for her,Ms Davidson's file note recorded in respect of Danielle: from whom he is estranged – and has been for some time – to recogniseher as part of his family.[40] Having regard to the extent of the provision made and Danielle's moderatefinancial position, the Judge concluded there was no breach of moral duty andDanielle's claim was dismissed.1210 Judgment under appeal, above n 2, at [162].11 At [167]–[168].12 At [174] and [176]–[178].[41] In assessing Sarah's claim, the Judge acknowledged that she had receivedweekly payments from the testator totalling well over $500,000.13 It wasacknowledged that the testator had not neglected her, but inequality of provisionrelative to her siblings (Danielle and Nicholas) was said to constitute a breach of hismoral duty.[42] Having regard to the benefit Sarah would receive as a beneficiary of the E Trustand the extent of the existing provision, the Judge concluded that she had been welland appropriately provided for by her father and her claim was dismissed.14[43] Turning to Brodie's claim, the Judge found that the testator had assumedresponsibility for both Sarah and her son Brodie when he was younger given Sarah'shistory of alcohol abuse. Sarah claimed that the testator was an important maleinfluence and support for Brodie in his early years. The Judge held that the testatorhad continued to provide support when Brodie became an alcoholic from at least 2009,including supporting him to attend rehabilitation programmes in Hanmer Springs andin Hamilton.15[44] However the Judge also acknowledged Nicholas' evidence that Brodie hadbeen completely disconnected from his grandfather for many years. Nicholas was notaware of Brodie having visited the testator in the last 15 years of the testator's life.16[45] The Judge found that the testator had given careful thought to the provisionmade for Brodie and that it was sufficient to discharge the testator's duty to thisgrandson and his claim was accordingly dismissed.17[46] Coming to the appellant, Belinda's claim, the Judge was mindful of theexplanation for her exclusion in Ms Davidson's evidence. The testator advisedMs Davidson that there were grandchildren he had not made either any provision or13 At [192]–[194].14 At [202]–[203].15 At [217]–[218].16 At [219].17 At [220]–[223].smaller provision for than Nicholas' children and Anna because he had very little ifany contact with them. One of Ms Davidson's handwritten notes included:[Belinda] → Left whole family. Disappear. Surfers Paradise? Doesn't keepin touch.[47] In a subsequent typed file note prepared when the codicil was executed,Ms Davidson recorded that his intention was (among other things) to "make betterprovision for his daughter [Danielle] and provision for [Nicholas's] [four] childrenplus [Danielle's] daughter [Anna] – all of whom [the testator] has a good relationshipwith and are important in his life". He advised that there were grandchildren he hadnot made provision for as he had very little if any contact with them. It appears thatthe increased provision for Danielle owed less to his belief that he owed her supportthan it did to his view that she might well sue the estate if he did not.[48] The affidavits included an acknowledgement from Belinda that her grandfatherhad become distant towards her once she supported her mother in the 1996 claim ofabuse made against him. She deposed that she had a very good relationship with himwhen she was younger and he provided her with assistance when she first moved outof home at the age of 16. But following her mother's allegations against the testator,which she thought it morally correct to support, she was forced into an estrangementand from that point he became distant towards her. She maintained that she hadattempted on many occasions to make contact with him, but her attempts were notwell received. He refused to see her or her children. These claims were disputed.Catherine's recollection was that there had been no contact from Belinda since a visitsome 30 years previously and Nicholas said that the testator never spoke of anyrelationship with or any interaction with Belinda.[49] The Judge found that the primary obligation to provide for Belinda rested withher mother, Danielle.18 Recognising an estrangement between the two — Danielle hasnot told Belinda where she now lives — the Judge suggested that if Danielle did notmake provision for Belinda in her will then it would be open for Belinda to pursue aclaim under the Act against her mother.19 The Judge rejected Belinda's claim for18 At [213].19 At [214].equivalent or similar treatment to five of the testator's other grandchildren on theground that it was understandable that a testator would treat one grandchild who hada close relationship with that grandparent in preference to one who had had minimalor no contact.20[50] Accordingly there was no breach of the testator's moral duty to Belinda andher claim was dismissed.21Arguments on appeal[51] Mr Locke filed very thorough submissions in which he carefully reviewed theauthorities. Other cases are helpful in a general sense because they illustratecircumstances in which a moral duty has been found present or absent. But that isusually as far as they can be pressed, because they all turn on their frequentlyidiosyncratic facts. This case is no exception. For this reason we do not find itnecessary to traverse the many examples referred to in argument.[52] Mr Locke characterised Belinda as the only party to the High Court claims whois not a beneficiary of the will or codicil, a beneficiary of either trust or a party whohas settled a claim. On various grounds, he submitted that the Judge failed to correctlyassess her needs for maintenance and support.[53] Grandchildren of a deceased living at his death are included in the categoriesof persons who may apply for provision out of an estate.22 The Act more specificallyprovides in the case of claims by grandchildren:23(2) In considering any application by a grandchild of any deceased personfor provision out of the estate of that person, the court, in consideringthe moral duty of the deceased at the date of his death, shall haveregard to all the circumstances of the case, and shall have regard toany provision made by the deceased, or by the court in pursuance ofthis Act, in favour of either or both of the grandchild's parents.20 At [215].21 At [216].22 Family Protection Act 1955, s 3(1)(c).23 Section 3(2).[54] Mr Locke submitted that there was evidence that the testator had no knowledgeof Belinda's needs and made a somewhat capricious decision based on the perceivedfailure by her and some others of the claimants to stay in contact with him.[55] Mr Locke listed seven factors that he relied on in support of the appellant'sclaim. They are as follows:24(a) The appellant's particular financial and health circumstances and thetheoretical but nevertheless real possibility of the appellant in factpredeceasing her mother, should the appellant's [Leukaemia] recurand be unresponsive to further treatment.(c) The substantial size of the estate, and the ability of the estate to meetall just claims against it in absolute terms.(e) The absence of any provision for the appellant from the deceased'sestate.(f) The absence of any significant inter vivos support for the appellantfrom the deceased or by way of family trust.(g) The absence of any significant support during the appellant's lifetimefrom any other source.(i) The appellant's estrangement from and lack of any realisticexpectation of future support from her mother.(j) The significant provision made for six of the other sevengrandchildren from the estate and by way of inter vivos trusts.[56] Mr Locke invited the Court to take judicial notice of the significant prospectthat, whilst Belinda's leukaemia was in remission, there was a real prospect of itreturning which meant that her life expectancy may be shorter than that of her mother.That consideration, plus the fact that her circumstances made out a current need forprovision, were factors which arguably ought to have been taken into account, butwere not accorded any weight in the High Court judgment.[57] Mr Locke also argued that the disparity of treatment of various of the testator'sgrandchildren was not borne out by the relative strength of their relationships with himand their levels of need for maintenance or support. In particular, he contrasted thegift to Brodie where there had been substantial support during his early years, and thencomplete alienation during Brodie's adult years despite which he was still provided24 We have used the non-sequential lettering used in Mr Locke's submissions.for. Mr Locke also invited comparison with a provision of one-fifth of two-eighths ofthe residue to each of Nicholas' four children and Belinda's sister who had beenadopted out but still received the same entitlement. On the premise that disparity oftreatment needed to be rationalised, Mr Locke submitted that there was no justificationfor Belinda being the only grandchild who has received nothing either out of the estateor by way of being a beneficiary of an inter vivos trust.25[58] Mr Locke also submitted that Danielle's estrangement from the testator,however caused, did not lessen the testator's moral duty to Belinda merely becauseDanielle was her mother. In circumstances where Danielle, living an eccentriclifestyle, has severed contact with Belinda, a prudent testator would appreciate theneed to provide for a grandchild in Belinda's position, having regard to the realprospect that her own mother would not make provision for her.[59] Opposing the appeal on behalf of Nicholas in his personal capacity,Mr Waalkens KC made the following points:(a) Danielle's circumstances do not take her out of the cases wherea grandchild can be expected to look primarily to their parent orparents for maintenance and support.(b) The evidence of Belinda's medical condition confirms that hercondition has been successfully managed and there was noevidence to justify an assumption that either the condition isterminal, or that she is likely to predecease her mother.(c) Belinda had supported the allegations of misconduct broughtagainst the testator by Danielle, having made her decision tosupport her mother for her own sake. She had had no contactwith her grandfather for at least the last two decades of his life.(d) The detail of the financial position did not make out the case forimmediate need.(e) Disparity of treatment between her and other grandchildren ofthe testator was adequately and accurately recognised by theJudge. The circumstances of each grandchild's relationshipwith the testator justified the disparity.25 This proposition depended on her sister being treated as having received $20,000 from the estatein settlement of her claim under the Act.Applicable principles[60] The broad principles applying to claims under the Act are well settled.There can be no criticism of the Judge's summary, which recognised the followingpoints.26 The starting position, as recognised in this Court's decision inWilliams v Aucutt, is that testamentary freedom remains except to the extent that therehas been a failure to make proper provision for the maintenance and support of thoseentitled to it.27[61] In summarising the consideration of whether a testator has breached his or hermoral duty, the Court in Williams adopted the observations from an earlier decision ofthis Court as follows:28The principles and practice which our Courts follow in Family Protectioncases are well settled. The inquiry is as to whether there has been a breach ofmoral duty judged by the standards of a wise and just testator or testatrix; and,if so, what is appropriate to remedy that breach. Only to that extent is the willto be disturbed. The size of the estate and any other moral claims on thedeceased's bounty are highly relevant. Changing social attitudes must havetheir influence on the existence and extent of moral duties. Whether there hasbeen a breach of moral duty is customarily tested as at the date of the testator'sdeath; but in deciding how a breach should be remedied regard is had to laterevents. Experience in administering this legislation has established theapproach in this Court that on an appeal the Court will not substitute itsdiscretion for that of the Judge at first instance unless there be made out somereasonably plain ground upon which the order should be varied. All this is sofamiliar that authorities need not be cited.[62] The Judge also acknowledged further observations from Williams on what iscovered by the concepts of maintenance for and support of a claimant. The notion ofsupport is wider than that of maintenance, and supporting a child's path through life isnot simply a matter of financial provision, but also requires the recognition of a senseof belonging to a family. Where the size of the estate is more than sufficient to meetother needs, then a provision so small as to leave a justifiable sense of exclusion fromparticipation in the family estate might not amount to proper support for the familymember.2926 Judgment under appeal, above n 2, at [68]–[70].27 Williams v Aucutt [2000] NZLR 479 (CA) at [33].28 At [35], quoting Little v Angus [1981] 1 NZLR 126 (CA) at 127.29 At [52].[63] A further point made in Williams was that perceived unfairness arising fromdisparity of treatment between potential beneficiaries is not of itself sufficient tooverride the testator's wishes. A claimant must instead make out that a testator ortestatrix has not acknowledged a need for maintenance and support.30[64] In considering claims by grandchildren of the testator, this Court has cautionedagainst setting down rules that might confine the approach provided for in s 3(2) ofthe Act.31 The Judge cited the High Court decision of Gallen J in Jones v Molesworth,which illustrated that there is a continuum, starting with more usual cases where atestator can probably discharge all duties by making provision for their children, whocan reasonably be expected in their term to make provision for the testator'sgrandchildren. At the other end of that continuum will be much more unusual caseswhere a grandparent may have taken full responsibility for a grandchild, giving rise toa moral obligation that may come close to that owed to children.32[65] We have noted that the statutory jurisdiction is expressly discretionary, whichhas implications for the standard of appellate review. In the passage fromLittle v Angus which we have quoted at [61] above, this Court stated that experiencehas taught that an appellate court should not substitute its discretion for that of the trialjudge unless there be made out some "reasonably plain ground" on which the ordershould be varied. This Court has recently held in Talbot v Talbot that whether or notthere has been a breach of duty is an evaluative question,33 while the decision to granta remedy is discretionary and will only be reviewed on May v May grounds.34We doubt that this effected any substantive change to the traditional, flexible standardof appellate review. In many cases the existence and extent of the moral duty will bethe decisive consideration, but an appellate court will not intervene in an evaluativedecision unless persuaded that the court below was wrong and that onus is frequentlydifficult to discharge in this jurisdiction.30 At [37].31 Re Houghton (Deceased) [1976] 1 NZLR 251 (CA) at 255. The section is set out at [52] above.32 Jones v Molesworth HC New Plymouth A71/85, 14 November 1986 at 8.33 Talbot v Talbot [2017] NZCA 507, [2018] NZFLR 128 at [37].34 May v May [1982] 1 NZFLR 165 (CA) at 170.Analysis[66] We begin with the estrangement between Belinda and her grandfather. It isunderstandable that Belinda would take her mother's side, at least initially, and weaccept that the initial estrangement should not be attributed to Belinda. Nor would itdetract from any moral duty that the testator owed Belinda that, as it turned out,Danielle failed to prove the abuse. Danielle's allegations would not preclude anobligation, in appropriate circumstances, to ascertain a grandchild's needs and ifappropriate make some provision for them.35[67] But the fact remains that testator and grandchild had been estranged since1996, when Danielle made her allegations, and they remained so until the testator'sdeath, when Belinda was middle-aged. Mr Locke argued that Belinda repeatedlyattempted to contact the testator. While the Judge did not say so expressly, we thinkit clear that she found this claim had not been made out. The Judge approvingly quotedMs Davidson's file notes, the substance of which was that Belinda had disappearedand did not keep in touch.36 We see no reason at all why the testator should have madethat up when discussing with his lawyer his moral obligations to his family. We donot accept Mr Locke's faint submission that the testator's capacity to weigh all relevantfactors was wanting by that late stage of his life; the evidence of Ms Davidsonindicates rather that he retained testamentary capacity and was alert to his obligations.[68] We are not persuaded that the Judge was wrong on this important factualquestion. It follows that the claim must be approached on the basis that theestrangement was longstanding, complete, and, on Belinda's part, voluntary.[69] The Judge found it unsurprising that Belinda was not provided for in thesecircumstances:[215] I do not consider Belinda has established a breach of moral duty onthe part of [the testator] by having regard, as she does in the submissions onher behalf, to the fact that other grandchildren (Nicholas' four children andBelinda's sister Anna) were provided for under the will. Where one grandchildhas a close relationship with their grandparent, they are understandably treatedpreferentially to a grandchild who has had minimal or no contact with the35 See for example Abbey v Patterson [2014] NZFC 8621.36 Judgment under appeal, above n 2, at [208]–[211].grandparent. Belinda's reliance upon how [the testator] treated five of his othergrandchildren is irrelevant.[70] It will be seen that the Judge attributed the different provision for othergrandchildren to their close relationship to the testator. She concluded that there wasno breach of moral duty.37[71] Mr Waalkens argued that on the evidence Belinda has no need of support.She works as a nurse and she and her husband have net assets of $345,000. It isimmaterial that other grandchildren were better provided for, given their closerelationship with the testator. The Judge did not make a finding on this issue, havingconcluded that there was no breach of moral duty. In our view Belinda does have needof support. Her means and resources are modest. She has had limited ability to workduring her illness, she and her husband have dependants, and they were forced to spendsubstantial sums on repairing a previous home which was found in 2015 to be infestedwith termites.[72] Mr Locke argued that the testator overlooked Belinda's need for support.The difficulty with this submission is that there is no evidence the testator knewanything of her circumstances. The argument relies on evidence tendered at trial and,in particular, a post-trial affidavit that she was permitted to file to update the evidenceof her financial position.[73] Mr Locke was accordingly forced to argue that the testator was under a duty toinquire into Belinda's circumstances before deciding what provision he should makefor her. The argument supposes that he was under a continuing duty to monitor hercircumstances. We are not persuaded that his obligation as a wise and just testatorextended so far, at least in circumstances where he was estranged from an adultgrandchild and responsibility for that state of affairs cannot be laid at his door. That isparticularly so when the full extent of her family's financial difficulties, caused by hercancer diagnosis in late 2017, would have been realised only months before his death;the codicil was executed in July 2018 and he died the following month.37 At [216].[74] The Judge also found that it is Danielle who has the primary obligation toprovide for Belinda:[213] I consider the primary obligation to provide for Belinda rests with hermother, Danielle. This case bears no similarity to the body of cases where agrandchild should be afforded the same status as a child. Nor does it fall withinthose cases where, because of a special relationship between a grandparentand a grandchild, provision or further provision out of an estate is warranted[214] If because of the estrangement between Danielle and Belinda,Danielle does not make provision for Belinda in her will, then it would beopen to Belinda to pursue a Family Protection claim against her mother.[75] Mr Locke argued that the Judge was wrong to rely on Danielle's obligations toBelinda. The two are estranged and there is no reason to think that Danielleexperiences any obligation to provide for her daughter, or that her estate will be ableto do so having regard to her spendthrift ways. He invited us to take judicial notice ofa likelihood that Belinda might predecease her mother. Mr Waalkens responded thatit is speculative to suggest Danielle will not provide for her daughter. He pointed outthat Danielle says their relationship is not always easy but maintains that she is devotedto Belinda.[76] We accept that Danielle may well not provide for Belinda. She refused toprovide financial support when Belinda was ill with cancer and facing large medicalbills. She appears to have seized on pretexts to justify her inaction, although Belindaalso accepted that Danielle was unlikely to be in a position to provide much financialassistance. We also accept that the testator did not justify his decision with respect toBelinda by adopting an assumption that Danielle would provide for her. It would besurprising had he done that, given his disillusioned view of Danielle. He based hisdecision on Belinda's failure to stay in touch with him.[77] The fact remains, though, that the testator did provide substantially forDanielle, placing her in a position where she could provide in turn for her owndaughters. The legislation recognises that this may bear on the existence of any moralduty to provide separately for a grandchild, and it requires that the court have regardto any provision that the testator made for the grandchild's parent.38 It is an assessment38 Section 3(2).to be made in all the circumstances of the case. Having rejected Danielle's claim thatthe testator had abused her, the Judge found that his provision of a substantialmonetary sum for Danielle was adequate.39 She was obliged to take it into accountwhen considering Belinda's claim. We add that we are not prepared to speculate, inthe absence of evidence, that Belinda's life expectancy is shorter than Danielle's.[78] In the result, the testator and Belinda had long been estranged, she has notshown that the estrangement was his choice, he was not aware of any need formaintenance and support on her part, and he had provided for her mother, who isobliged in turn to provide for Belinda. In these circumstances we are not persuadedthat the Judge was wrong to find the testator owed no moral duty to provide separatelyfor Belinda. We do not accept that his decision to provide for other grandchildrenmade the omission in her case "capricious or wholly unjust".40Result[79] The appeal is dismissed.[80] Counsel asked that we reserve costs. We do so but record that in this Courtcosts ordinarily follow the result and seldom depart from scale. We record that wewould ordinarily order that Belinda pay costs for a standard appeal on a band A basis.Her means are limited, but that does not in itself warrant a departure from the usualrule. Counsel may seal judgment accordingly if they are in agreement. Failing that,Mr Waalkens may file submissions within 14 days of the date of this judgment andMr Locke may reply within a further seven days. Submissions should not exceed fivepages.Solicitors:Davenports West, Auckland for AppellantDenham Bramwell, Auckland for Second Respondent39 Judgment under appeal, above n 2, at [162] and [177].40 See McGee v Cairns HC Hamilton M 83/92, 4 August 1995 at 13.