FARQUHARSON v FARQUHARSON [2021] NZHC 222

FARQUHARSON v FARQUHARSON [2021] NZHC 222 [19 February 2021]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECIV-2020-463-000035[2021] NZHC 222IN THE MATTER Of The Family Protection Act 1955BETWEEN DAVID KAHAWAI FARQUHARSONAppellantAND OPAL ADA MARIE FARQUHARSON ASADMINISTRATOR IN THE ESTATE OFIAN CHARLES FARQUHARSONRespondentHearing: 28 September 2020Appearances: J R Hosking for AppellantR D Clark for RespondentJudgment: 19 February 2021JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 19 February 2021 at 2:30 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Anderson Creagh Lai, AucklandLewis Lawyers, Cambridge.Introduction[1] This is an appeal by David Farquharson (the appellant) from a decision ofJudge J F Munro delivered in the Family Court at Rotorua on 19 February 2020 inwhich her Honour determined his application under the Family Protection Act 1955(the Act) for provision from the estate of his late father Ian Charles Farquharson (Ian)who died on 2 June 2017.1[2] By his Will dated 30 March 2005, Ian left the whole of his estate to his formerwife Opal Ada Marie Farquharson (Opal), who is the appellant's mother, and the soleexecutor and trustee of Ian's Will.[3] The appellant (who is 45 years' old) is Ian and Opal's only son. He claims thathis late father failed to discharge his moral duty him by failing to make any provisionfor his proper maintenance and support for him his Will.[4] Judge Munro found that Ian had not breached his moral duty to the appellantto provide him with financial maintenance, but considered that as he was Ian's onlychild, "a modest award is appropriate to recognise his place in the family", which shedetermined to be 10 per cent of the value of Ian's estate. Finding the value of Ian'sestate to be $288,682 and the appellant's notional entitlement to be $28,868, the Judgethen deducted $22,912 to allow for the value of a motor vehicle and a sum of cashalready received by the appellant from his father, and made an award in his favour inthe sum of $6000 to be paid to him from the estate.2[5] The appellant appeals saying that the Judge's award is "niggardly" andinsufficient to remedy Ian's failure to discharge the moral duty he owed. He says thatthe Judge erred in her determination of his claim and that an appropriate award wouldbe approximately 46 per cent of the value of the estate and equate to the cash sum of$207,100 held by the estate as at the date of the hearing of the appeal.[6] Opal disputes the substance of the appeal and says that Ian did not breach hismoral duty to the appellant by not making provision for him in his Will and she1 Farquharson v Farquharson [2020] NZFC 1103.2 At [23].supports the Judge's determination. However, she accepts that the Judge erred in hercalculation of the present value of the estate by failing to take into account that Opalhad already received her half share of the value of Ian's employee superannuationpayment and Kiwisaver account and had not accounted for the estate's liabilities.[7] The principal issues on appeal are:(a) Whether Ian had a moral duty to make proper provision for theappellant's maintenance and support; and if so,(b) Whether the Judge erred in finding that an award of 10 per cent of thevalue of the estate - discounted by the amount of money representingthe value of what the appellant had already received - was appropriateto discharge Ian's moral duty to the appellant.Background[8] Ian and Opal met and commenced their relationship in 1972. The appellantwas born on 17 April 1973. Opal had previously been married and already had threechildren: a daughter, Dorothy, born in 1964 who was living with her; and twin sonsAlan and Harry, born in 1965, who were living with their paternal grandmother. Ianand Opal were married on 6 October 1975 and the twins commenced living with themaround 1978.[9] Ian and Opal and the four children then resided in Mangere where theypurchased a house. In 1979, Ian sold his printing business and the family relocated toMangakino, where Ian obtained employment at Forest Products. Ian worked at ForestProducts for almost 39 years. The appellant attended primary school at Whakamarunear Mangakino, and later boarded during his secondary school years at St Stephen'sSchool at Bombay. From Mangakino, Ian and Opal subsequently relocated to Tokoroaand in November 1997 they purchased a house in Kelso Street, in Tokoroa.[10] While still a young man, the appellant had two children with his first partner.Crystal was born in 1993 and Quintin was born in 1995. Ian and Opal had and havemaintained a close relationship with their two grandchildren. However, the appellant'srelationship with the children's mother ended, and the appellant entered into anotherrelationship. He and his second partner were married and had two children together.[11] Around 2003, Ian and Opal assisted the appellant with a deposit to enable himto purchase a house in Manurewa, Auckland. As a consequence of the financialcontribution he had made, Ian and the appellant were both named on the title as equalowners of the property.[12] Ian made what was to be his last Will on 30 March 2005. In it he appointedOpal as his sole executor and gave the whole of his estate to her. The Will furtherprovided that in the event of Opal not surviving Ian, he made several specific bequestsincluding leaving his half share in an Auckland house to Dorothy, and his half sharein the Manurewa house to the appellant, with the residue of his estate to be dividedequally between Dorothy, Alan, Harry, and the appellant.[13] However, some four years after the Manurewa house was purchased, the BNZthreatened a mortgagee sale and to avoid that taking place, the house was sold. Afterrepayment of Ian's contribution to the purchase of the house and legal costs, theappellant's share of the proceeds of sale was $15,000. In 2007 and following the saleof the Manurewa house, the appellant went to live in Australia. While living there hemaintained contact with his father over the telephone, and on a number of occasionshe requested and received financial assistance from him. The appellant alsomaintained contact with his father by email and occasionally returned to visit his fatherin Tokoroa when he was visiting from Australia. Apart from once when Opal took thetwo older children to Australia to see him, the appellant did not see his children duringthe time he was living there. Ian and Opal nevertheless maintained close contact withCrystal and Quintin and provided them with financial assistance and a home at times.[14] In November 2009, Ian and Opal separated. Opal moved away from Tokoroato reside in a house in Opotiki, which they had earlier purchased with a view to retiringthere. Their amicable separation was a result of Ian's excessive consumption ofalcohol. Ian remained residing in the Kelso Street property in Tokoroa. Theycontinued to operate a joint bank account. On 28 November 2012, they entered into awritten agreement recording a full and final settlement and division of theirrelationship property. Their agreement provided that Ian was to retain the Kelso Streetproperty, and Opal was to retain the Opotiki house, as their separate propertyrespectively. The agreement further provided that Opal was to have a half share ofIan's superannuation scheme funds, and that he would retain the "Great Wall" motorvehicle as his separate property and Opal would retain two other vehicles as herseparate property. They also acknowledged that they had divided the chattels andfurniture existing at the date of their separation between them pursuant to theagreement and stipulated that all bank accounts and insurance policies would remainin the ownership of whichever of them had legal title to them.[15] Despite their formal separation and division of property and assets, Ian andOpal maintained contact with one another. Ian would visit Opal at Opotiki to see theirfamily and he and Opal's son Alan undertook work to build a garage at the Opotikiproperty which was intended to be turned into a utility area when he retired. Opalwould go to Tokoroa and stay with Ian while there.[16] At the time of Ian and Opal's separation, the appellant and Opal had a seriousfalling out resulting in them not speaking to each other during the following eightyears. The appellant says the reason for their falling out was because he did not acceptOpal's criticisms of his father and her explanation of the reasons for their separation.[17] Around 2016, Ian and Opal discussed the prospect of her moving from Opotikiback to Tokoroa. At that time, Ian was experiencing pain in one of his legs and washaving trouble walking. They decided it would be best if they were both living inTokoroa, and so Opal's Opotiki property was sold. Opal purchased Kelso Street fromIan and moved back to live at the property. Ian then purchased a retirement unit forhimself in Walnut Place, Tokoroa. Ian deposited the funds he received from Opal forhis Kelso Street property into the joint bank account he and Opal operated, therebyenabling her to also have access to those funds.[18] In early 2017, Ian's health deteriorated to the stage where he needed assistanceto continue living at Walnut Place. When the appellant learned about his father'ssituation and deteriorating health, he resigned from his employment in Australia andarranged to return to New Zealand in order to care for him. Prior to the appellant'sarrival, Opal's daughter Dorothy cared for Ian at Walnut Place. The appellant arrivedin New Zealand around 15 March 2017 and lived at Walnut Place caring for his father.Although the appellant was his father's primary caregiver during the period prior toIan's death, Opal and other members of the family were also involved in providingsome care for him during this time. While he was caring for his father, Ian gave theappellant some money and the use of his vehicle.[19] Following Ian's death on 2 June 2017, the appellant remained living at WalnutPlace on his own for a period before returning to live in Australia. He explains thatfollowing his separation from the mother of his children, he made child supportpayments to her until some five years ago when his son Vance went to live with him.At that point he ceased making further child support payments as Vance wasfinancially dependent upon him until recently when he left home to live with hisgirlfriend.[20] The appellant's current financial position is modest. He resides in rentedaccommodation in Queensland paying $300 per week, and his only significant assetsare a motorcycle valued at $6000 and his superannuation fund of $11,868. He stateshe works as a labourer lining underground pipes and he earns a net weekly income ofapproximately $1000 after tax is deducted. He also receives board payments from hispartner of $200 per week, and previously received $100 per week from his son Vancewhen he was living with him. He has outstanding child support liabilities totallingnearly AU$80,000, and outstanding legal fees of $30,000. The appellant says that hewould like to be able to purchase a house in Australia and pay off a mortgage ratherthan paying rent.[21] Because of the mistrust and poor relationship between him and his mother, theappellant considers that he is unlikely to benefit from his mother's estate.[22] Opal's financial and asset position is substantially secure. She is now 76 yearsold and does not enjoy good health. She owns the house at Kelso Street in Tokoroaand has approximately $55,000 in cash held in bank accounts. She also owns a 2016motor vehicle which is valued at around $20,000. She receives NationalSuperannuation of $22,900 per annum, has living expenses including rates andinsurances, and vehicle operating and registration expenses assessed at $25,300 perannum.[23] The appellant also made a Testamentary Promises claim in the Family Courtwhich was resolved shortly before the Family Protection proceeding was heard.Pursuant to the settlement the appellant retained the sum of $6,912 which he hadpreviously received from the joint bank account held by Ian and Opal. The terms ofsettlement further provided that while he would retain possession of his father's motorvehicle valued at $13,500, it would be included as an asset of the estate for thepurposes of the Family Protection proceedings.Family Protection Act claims and general principles[24] Section 4(1) of the Act provides:If any person (referred to in this Act as the deceased) dies, whether testate orintestate, and in terms of his or her will or as a result of his or her intestacyadequate provision is not available from his or her estate for the propermaintenance and support of the persons by whom or on whose behalfapplication may be made under this Act, the court may, at its discretion onapplication so made, order that any provision the court thinks fit be made outof the deceased's estate for all or any of those persons.[25] The approach to be adopted and principles to be applied by the Court indeciding whether a testator or testatrix has breached their moral duty to provide forthe proper maintenance and support of a claimant and the appropriate remedies, aresummarised in the following statement in Little v Angus.3The 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.3 Little v Angus [1981] 1 NZLR 126 (CA) at 127.[26] In Williams v Aucutt the Court of Appeal addressed the phrase "propermaintenance and support" as it appears in s 4(1). Richardson P said:4we reject the argument that the Court must expressly find a need for propermaintenance and support. The test is whether adequate provision has beenmade for the proper and support of the claimant. "Support" is an additionaland wider term than "maintenance". In using the composite expression, andrequiring "proper" maintenance and support, the legislation recognises that abroader approach is required and the authorities referred to establish thatmoral and ethical considerations are to be taken into account in determiningthe scope of the duty. "Support" is used in its wider dictionary sense of"sustaining, providing comfort". A child's path through life is supported notsimply by financial provision to meet economic needs and contingencies butalso by recognition of belonging to the family and of having been an importantpart of the overall life of the deceased. Just what provision will constituteproper support in this latter respect is a matter of judgment in all thecircumstances of the particular case. It may take the form of lifetime gifts ora bequest of family possessions precious to its members and often part of thefamily history. And where there is no economic need it may also be met by alegacy of a moderate amount. On the other hand, where the estate comprisesthe accumulation of the family assets and is more than sufficient to meet otherneeds, provision so small as to leave a justifiable sense of exclusion fromparticipation in the family estate might not amount to proper support for afamily member.[27] The Court of Appeal in Henry v Henry further explained:5a mere perception of unfairness is not good enough reason to disturb thewill: the Court must conclude that the claimant has established that he or shehas not received adequate provision for proper maintenance and support. Thatassessment must be made applying the test enunciated by Richardson P inWilliams v Aucutt at para [52] (quoted at para [44] above). In making theassessment, however, the Judge must remind him or herself that there is nobasis for the Court to override the testamentary freedom of the testator ortestatrix if that test is not met, even if it appears to the Judge that a fairerdistribution of the estate would have been desirable.[28] Where the Court finds there to have been a breach of moral duty, in decidingthe extent to which the testator's testamentary freedom should be interfered with, ithas a broad discretion to order any provision it thinks fit to be made out of thedeceased's estate. In Fisher v Kirby the Court of Appeal observed:6The more recent decisions of this Court have re-emphasised what has alwaysbeen understood: that mere unfairness is not sufficient warrant disturbing atestamentary disposition and that, where a breach of moral duty is established,4 Williams v Aucutt [2000] 2 NZLR 479 (CA) at [52].5 Henry v Henry [2007] NZCA 42, [2007] NZFLR 640, at [55].6 Fisher v Kirby [2012] NZCA 310, [2013] NZFLR 463, at [119] – [120].the award should be no more than is necessary to repair the breach by makingadequate provision for the applicant's proper maintenance and support.The decisions of this Court from and including Little v Angus are properlyviewed as a timely reminder that awards should not be unduly generous. But,in our view, neither should they be unduly niggardly, particularly where theestate is large and it is not necessary to endeavour to satisfy a number ofdeserving recipients from an inadequate estate. A broad judicial discretion isto be exercised in the particular circumstances of each case having regard tothe factors identified in the authorities.SubmissionsAppellant's submissions[29] Ms Hosking for the appellant submits that Ian breached his moral duty to hisonly son by making no provision for him in his Will unless Opal had predeceased him.Counsel says that following their separation in November 2009 and their subsequentproperty agreement dated 28 November 2012, by which they divided their property,Ian and Opal had lived financially independent of each other. Ms Hosking notes thatIan's Will was executed on 30 March 2005 several years before his separation fromOpal, and that he and she were not living together in the period prior to his death, andthey had not done so for many years.[30] Ms Hosking notes that Opal is both executor and sole beneficiary under Ian'sWill. However, she notes that although Opal is saying that she is acting in her role asan executor and not opposing the claim in her role as a beneficiary, her opposition hasin effect been that of an affected beneficiary, and not of a disinterested executor willingto abide the decision of the Court.[31] Counsel submits that this approach was evident by Opal maintaining untilshortly before the Family Court hearing that she had not received her half share ofIan's superannuation entitlements as provided for in their 28 November 2012agreement for division of property. She notes that Opal initially resisted makingdisclosure of her files and documents regarding implementation of the propertyagreement, however when the file was eventually disclosed it was found to containcopies of correspondence confirming that Opal had made a request to be paid a halfshare of Ian's superannuation, and that it had been paid to her. Ms Hosking furthernotes that when Opal was cross-examined in the Family Court, she was initiallyadamant that she had not received her half-share of Ian's superannuation funds.[32] Counsel says that as a consequence of the approach Opal has, in her capacityas the executor of Ian's estate, incurred and expended a large sum for legal expenseswhich in substance relate to defending her position as sole beneficiary. As a result,the value of the estate has been reduced, and counsel submits the value of the legalcosts incurred and paid should be added back as they properly represent the value ofthe estate.[33] Ms Hosking says that once Opal's legal fees are added back, the proper valueof Walnut Place is adopted, and the superannuation is included, the estate's total valueis $477,100. Counsel notes that is a significantly greater sum than the $288.682.54determined by the Judge as being the value of the estate.[34] Ms Hosking submits that the Judge also erred by taking into account the sumof $6,912 which related to the settlement of the appellant's testamentary promisesclaim. Ms Hosking says that sum of $6,912 was not intended by the parties to beincluded in any assessment of the appellant's claim under the Act.[35] Counsel further submits that although the Judge expressly found that theappellant had not engaged in any disentitling conduct,7 she nevertheless found that hismodest financial situation was the result of his lifestyle and choices over the years.8[36] Counsel submits that there is no evidence that the appellant received anythingmore in terms of financial advancement than the $15,000 he received for his half shareof the Manurewa property and several payments he received from his father to assisthim to meet outstanding rent. Ms Hosking submits that the Judge erred by takingaccount of what she described as the appellant's minimal contact with his father duringthe ten years prior to his death and his total lack of support for this father.9 Counselsubmits that the Judge failed to take proper account of the appellant's poor financialsituation. She submits that there is no evidence to support or justify the Judge's finding7 Farquharson v Farquharson, above n 1, at [19].8 At [15].9 At [22].that there had been a "total lack of support" by the appellant for his father, or that therehad been only minimal contact between the two of them. She notes that the evidencewas that the appellant and his father had continued to maintain contact with oneanother via telephone and that frequency of their contact was increased during therugby season, and of the appellant's care for his father during the last months of hislife, he having resigned from his employment and returned from Australia to do so.[37] Counsel submits that the Judge erred by failing to objectively consider theappellant's circumstances and by failing to recognise that at 45 years of age, theappellant has no significant assets or financial security. Ms Hosking submits that thepresence of those circumstances alone is sufficient to find that Ian had a moral duty tomake proper provision in his Will for his son's maintenance and support. Counselsubmits that as a consequence of that error the Judge proceeded to make only a modestaward in the appellant's favour in order to recognise his position in the family, ratherthan recognising that Ian's moral duty extended to both maintenance and support.[38] Ms Hosking submits that these errors also led the Judge to err in her assessmentof the quantum of the award. She submits that the Judge also failed to take properaccount of the unusual situation whereby Ian and Opal had already divided theirproperty pursuant to a formal written agreement, had implemented its terms, and werefinancially independent of each other at the time of Ian's death. Counsel submits thatIan's separation from Opal and their concluded division of property meant that Ian'smoral duty to Opal was negligible, and consequently Ian's moral duty to the appellantshould take primacy. Furthermore, counsel submits the Judge erred in her finding thatit could be inferred that Ian intended that Opal would make provision from her estatefor the appellant's inheritance upon her death.10[39] Ms Hosking notes that since shortly after Ian's death Opal has been residing atthe Walnut Place property, which need not be disturbed by any order made to rectifythe breach of moral duty. She submits that an appropriate order to remedy the breachof moral duty would award the appellant the cash component of Ian's estate10 Farquharson v Farquharson, above n 1, at [12].(approximately $207,500), which would provide him with a modest sum with whichto make a deposit to purchase a home.Respondent's submissions[40] Mr Clark for the respondent supports the Judge's finding that there was nobreach of Ian's moral duty to provide financial maintenance for the appellant. He saysthat although the Judge made an award of 10 per cent of the value of the estate torecognise the appellant's place in the family, the evidence established that the appellanthad always been accepted as being a member of the family.[41] Mr Clark says however that the Judge erred in her assessment of the value ofthe estate by failing to take account of the estate's liabilities which total $42,327.52.Counsel notes that Opal accepts that the net value of the estate also needs to accountfor the sum of $89,155 which she received as her half-share of Ian's superannuationand Kiwisaver funds.[42] The respondent says that by the terms of his Will it is apparent that Ian tooksteps to provide for his wife, Opal, to ensure that she would have sufficient funds forher retirement years and to possibly be in a position to assist the family in variousways. Mr Clark submits that in making his Will Ian can be seen to have carefullyconsidered his relationship with "his wife", and to have taken into account thefinancial benefits that the appellant had received during his lifetime. Ian would alsohave taken into account that the appellant and his partner were both employed andearning income and would have expected that the appellant would eventually beprovided for in Opal's estate.[43] Mr Clark for the respondent submits that Ian, as a wise and just testator, can beseen to have been aware of and taken all the relevant circumstances into considerationin making his Will, including his moral duty to his son. He submits that there is scantevidence of the appellant providing any support to his father during his life apart fromthe two and a half months prior to Ian's death when the appellant was living with andcaring for him.[44] Mr Clark says that it is clear from Ian's Will that right up to the time of hisdeath he continued to maintain a close relationship with Opal, that he trusted her withfinancial matters, and that he accordingly left all his estate to her. He submits thatOpal, as the appellant's mother, is to be given priority over the appellant and Opal'sthree other children with whom he maintained a close relationship.[45] Counsel says that should the Court nevertheless find there to have been abreach of moral duty, it is not for the Court to be generous with the testator's propertybeyond ordering such provision as necessary to repair the breach.[46] Mr Clark says that the appellant was previously given significant financialassistance by Ian to enable him to purchase the Manurewa house. However, when theappellant failed to keep the mortgage payments current, the house had to be sold. Henotes that Ian and Opal also assisted the appellant financially on several occasionswhen he was living in Australia. On one occasion, Opal advanced the appellant $1000to enable him to pay his rent, and on another the appellant asked his father for $3000to cover the payment of a rental bond. Counsel also notes the evidence that theappellant had expended money on overseas trips to Thailand and Costa Rica with hispartner and had thereby demonstrated his willingness to spend his money on lifestylerather than saving his money for the more essential matter of purchasing a house.[47] In regard to the size of the estate, Mr Clark produced a schedule detailing theassets and liabilities of the estate as at 15 September 2020. This schedule included anadjustment to recognise that Opal had received her share of Ian's superannuation andKiwisaver funds and also recognised the updated valuation of the Walnut Placeproperty. The net assets of the estate pursuant to this schedule are calculated as being$422,748.72. However, included in the total liabilities are Mr Clark's counsel's feestotalling 43,526.00.[48] In response to the appellant's submission that Opal has not adopted anexecutor's independent position in respect of his claim, and has opposed his claim indefence of her personal interests as the sole beneficiary of the estate, Mr Clark saysthat Opal's opposition is the result of the unusual situation in which the sole claimantis the appellant and his mother is the sole beneficiary. Mr Clark explains that Opal'sopposition to the appellant's claim is based on the estate's lawyer's assessment of themerit of the appellant's claim and says that consequently the estate funds have to datebeen used to meet Opal's legal costs.DiscussionThe value of the estate[49] Both parties agree that the Judge erred in her finding that the value of the estateis $288,682.54. That calculation omitted to recognise the estate's liabilities and theadjustment required to account for Opal having already received a half share of Ian'ssuperannuation and Kiwisaver funds.[50] Further, as a result of the Court's direction that an updated valuation of theWalnut Place property be obtained prior to the hearing, the valuation report preparedby Greenland Valuers assesses the market value of the property at $265,000 excludingchattels, and $270,000 including chattels. This valuation differs from the estimatedvalue of the Walnut Place property at the date of the hearing in the Family Court of$160,900.[51] In regard to the issue of whether Opal's counsel's fees should be treated as aliability of the estate and deducted for the purposes of determining the estate's currentvalue, I find that they should be excluded from the list of liabilities. As the executorof the estate, Opal has a responsibility to adopt an even-handed approach to dealingwith the appellant's Family Protection claim.11 Of course as the sole beneficiary andsomeone who stands to be adversely affected by any order of the Court granting theappellant provision from the estate, Opal has had reason to oppose the claim and theappeal in her own interests. However, the legal costs she has incurred in engagingcounsel to represent her in her personal capacity are not properly expenses to be treatedas liabilities of the estate.[52] I accordingly find that Opal's counsel's fees should be excluded from thecalculation of the current value of the estate. I also note that the list of liabilities11 Irvine v Public Trustee [1989] 1 NZLR 67 (CA) at 70.includes an invoice rendered by Lewis Lawyers for $6,129. This invoice would appearto have substantially related to the administration of the estate. Although that fee mayalso include attendances undertaken for Opal's benefit personally rather than asexecutor, I do not consider that it is necessary to make any adjustment on that account.[53] Applying these findings to the statement of the estate's assets and liabilities asat 15 September 2020 as set out in the statement produced by Mr Clark, I find thecurrent value of the estate to be $472,147.16.12 Of that sum the total held in cash is$207,441.Did Ian breach his moral duty to the appellant?[54] A significant and unusual feature of the circumstances relevant to the issue ofwhether Ian failed to discharge his moral duty to the appellant is the fact that in theperiod following the making of his Will, Ian separated from Opal and they dividedtheir relationship property. When Ian made his Will on 30 March 2005, he and Opalwere living together, and it is clear that the terms of the Will were based on Ian'sexpectation that he and Opal would remain cohabiting as husband and wife when hedied. The Will appoints Opal as sole executor and trustee of the estate, and providesthat in the event of Opal not surviving him, his estate would be distributed inaccordance with a number of specific bequests, which include a bequest to theappellant of Ian's half-share in the Manurewa house which he then owned in equalshares with the appellant. The Will further provided that the residue of Ian's estatewas to be divided equally between the appellant and Opal's three children.[55] However, two years later in 2007, the Manurewa house was sold, and theappellant received his share of the net proceeds. Then in November 2009, Ian andOpal separated and Opal relocated to Opotiki. Subsequently in November 2012, theyentered into the written agreement for the division of their property which theyproceeded to implement by transferring ownership of properties and dividing otherassets, including Ian's superannuation and Kiwisaver funds. Accordingly, by the timeof his death in June 2017, Ian's family situation had changed significantly, and with it12 Pursuant to the Statement of Assets and Liabilities as at 15 September 2020 the net value of theestate is $422,748.72. Adding back counsel's fees of $49,398.44, yields a current value of theestate of $472,147.16.the nature and extent of his moral duty to make testamentary provision for themaintenance and support of his family members.[56] Although it appears that over a period of several years prior to his death, Ianand Opal had established a relationship characterised by co-operation and a significantmeasure of trust, they had not reconciled in terms of their personal relationship. Theyalso had not resumed cohabitation, notwithstanding that on occasion they visited oneanother's residences and at times Opal stayed at Ian's home. Despite their co-operation with one another, the close relationship of marriage had ceased to exist, andthey were living independent lives in separate homes. Having regard to the divisionof their property, I consider that Ian's moral duty to make testamentary provision forOpal had been effectively extinguished. While Ian's testamentary freedom todistribute his property as he saw fit must be recognised, the fact that Opal and he wereno longer married and had divided their property, while during his lifetime Ian hadmade some comparatively limited contributions to his only son's maintenance andsupport, informs the existence and extent of the moral duty he owed to the appellantas at the date of his death.[57] As the Judge found, there is no evidence of any disentitling conduct by theappellant. With the appellant residing in Australia, he was not in a position to maintainclose contact with his father by personal visits, but it is clear that he nevertheless didmaintain contact by telephone and email. The fact that the appellant and his father didnot see one another often is not necessarily a reliable indication of the closeness oftheir relationship. It is frequently the case that family members are separated as aresult of living in different parts of the world and maintain their connection with oneanother by various electronic communications and telephone calls. The closeness ofrelationships between family members is not necessarily demonstrated by the natureand frequency of their communications. Furthermore, the fact that the appellant wenton two overseas holidays while living in rental accommodation is no indication thathe is financially irresponsible or imprudent such as would materially bear upon theextent of Ian's moral duty.[58] I reject the respondent's submission that Ian could reasonably have expectedOpal to ultimately make provision for the appellant from her estate, with theconsequence that Ian owed no duty to the appellant to make testamentary provisionfor him. Whether or not Opal may be minded to make provision for the appellant fromher estate, it is not a factor that would discharge the existence of, or even diminish theextent of, the moral duty owed by Ian to his son. Ian was however well aware that fora period of some eight years before his health deteriorated, Opal and the appellant hadnot been on speaking terms, and in light of that disharmony, there could be noreasonable expectation that she would be making provision for the appellant in herwill.[59] The appellant's financial situation is also relevant to an assessment of Ian'smoral duty. Ian was aware that the appellant did not own a house and was renting hisaccommodation in Queensland. He also knew that at times the appellant got behindin his rent and had requested financial assistance from his father. The appellant wasclearly in a poor financial position, working as a labourer and having no significantassets, and moreover at age 45, no apparent means of accumulating any capital fundswith which to improve his position by purchasing a house.[60] The appellants' action of resigning from his employment in Australia, andreturning to New Zealand to care for his father over the period of several months priorto Ian's death, confirms the existence of the bond they maintained notwithstanding theyears during which the appellant had lived in Australia. There is nothing to indicatethat the appellant was motivated to return to care for his father by anything other thanhis genuine love and affection for him, and by caring for his father during the latterstages of his life he demonstrated his affection for him in a practical and humanemanner. His actions support his claim that his father had a moral obligation to providefor him from his estate.[61] I accordingly find that there was a moral obligation upon Ian as at the date ofhis death to make adequate provision from his estate for his son's maintenance andsupport, and I find that by failing to make any provision in his Will for the appellant,Ian was in breach of his duty.[62] Although the value of Ian's estate was not substantial, it was neverthelesssufficient to enable Ian to discharge his moral duty. The extent of the provisionrequired to discharge the duty is in my view substantially informed by the fact that theappellant was Ian's only son, and by the appellant's modest financial situation andpoor prospects of ever being able to accumulate sufficient capital with which topurchase a home for himself, to better secure his future. The extent to which Ian wasable to make provision for the appellant to discharge his moral duty is also informedby the fact that he and Opal had already divided their property assets. Opal owned herown home and had cash assets following that division, leaving effectively half of theirpreviously jointly held assets as comprising Ian's estate.[63] Having regard to these circumstances and context at the time of Ian's death, Iconsider that the minimum required to discharge his moral duty to the appellant is anorder directing that he receive a sum and property, together comprising somewhat lessthan half of the value of the estate. The appellant presently has possession of the"Great Wall" motor vehicle belonging to the estate valued at $13,500.00 and also haspossession of some electronic equipment belonging to the estate which is valued at$2,500.[64] I agree with Ms Hosking that it would not be appropriate if the orders made bythe Court disturbed Opal's continued occupation of the Walnut Place property whereshe has been living since shortly after Ian's death.[65] I shall accordingly make an order awarding the appellant the sum of $200,000to be paid to him from Ian's estate. In addition, the appellant shall have ownership ofIan's "Great Wall" motor vehicle valued at $13,500 and the electronic equipmentvalued at $2,500 presently in his possession. The total value of this award being$216,000 which is approximately 46 per cent of the total value of the estate.Result[66] I make an order directing that the appellant be paid the sum of $200,000 fromthe estate of Ian Charles Farquharson. I further order that the appellant shall haveownership of and retain Ian's "Great Wall" motor vehicle valued at $13,500 and theelectronic equipment valued at $2,500 presently in his possession.[67] The appellant having succeeded with his appeal is entitled to costs andreasonable disbursements to be paid out of funds held by the estate.[68] I direct counsel for the appellant to file and serve a costs memorandum not toexceed three pages in length, excluding annexures, by 5.00pm on 26 February 2021.I direct counsel for the respondent to file and serve a costs memorandum not to exceedthree pages in length by 5.00pm on 5 March 2021. Following the receipt of thememoranda I shall determine the appellant's costs on the papers._____________Paul Davison J