LE COUTEUR v NORRIS [2018] NZCA 572

LE COUTEUR v NORRIS [2018] NZCA 572 [11 December 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA331/2018[2018] NZCA 572BETWEEN JULIET LE COUTEURAppellantAND RICHARD NORMAN TUDWAY NORRISAND RICHARD GEORGE WILSON ASEXECUTORS AND TRUSTEES OF THEESTATE OF SIDNEY HOWARD LECOUTEURRespondentsAND HOWARD FRANCIS JOHN LE COUTEURAND STEPHEN LE COUTEURInterested PartiesHearing: 9 October 2018Court: Cooper, Venning and Collins JJCounsel: A J Steele and K R Narayanan for AppellantG A Cooper and A L Worrill for Interested PartiesNo appearance for RespondentsJudgment: 11 December 2018 at 2.30 pmJUDGMENT OF THE COURTA The appeal is allowed.B The judgment of the High Court is set aside.C The appellant is awarded $590,000 from her mother's estate under s 3 ofthe Law Reform (Testamentary Promises) Act 1949.D The interested parties must pay the appellant costs for a standard appeal ona band A basis and usual disbursements.E Costs in the High Court are to be determined in that Court.____________________________________________________________________REASONS OF THE COURT(Given by Venning J)Introduction[1] In a judgment delivered on 23 May 2018 Powell J declined Ms JulietLe Couteur's claim for relief under the Law Reform (Testamentary Promises)Act 1949 (the Act) against the estate of her late mother Sidney Le Couteur.1Juliet appeals against that decision.Background[2] Sidney Le Couteur and her husband Philip had three children, Juliet and hertwo brothers, Howard and Stephen. Sidney lived in Auckland, mainly onthe North Shore. Howard spent his adult life in Christchurch. Stephen is now livingin Auckland but between 2005 and 2014 lived in England.[3] Sidney's last will was made on 27 March 1991. In it she left everything to herhusband Philip if he survived her but in the event he did not she appointedthe respondents as executors and trustees and gave Juliet her home at 50 Pupuke Road,Takapuna, together with chattels (excluding any motor car). The rest of the estate wasto be divided equally between Howard, Stephen and Juliet. Philip died in 1995 whenSidney was 72 years old. As his will was in similar terms to Sidney's will the propertyat 50 Pupuke Road, Takapuna was transferred into Sidney's sole name by survivorship.[4] Following her father's death, Juliet assumed a more active role in the care ofher mother. Before his death Philip had asked Juliet and her husband, Tony Garnier,to look after Sidney. In June 1997 Juliet and Tony, together with Sidney, purchased aproperty at 12A Manawa Road, Remuera as to a half-share each with the intentionSidney would live with Juliet and her family. In October 1997 Sidney sold 50 PupukeRoad and moved into 12A Manawa Road.1 Le Couteur v Norris [2018] NZHC 1074.[5] Subsequently, in June 1999 Sidney decided to move back to the North Shoreand purchased a property at 10G Brett Avenue, Takapuna. Sidney moved to BrettAvenue in April 2000. The property at Manawa Road, Remuera was sold in June 2000and Juliet and Tony bought a property of their own at St Vincent Avenue.[6] After moving to Brett Avenue, Sidney discussed with Juliet leaving thatproperty to her. On a copy of Sidney's 1991 will the reference to Pupuke Road wascrossed out and Brett Avenue substituted. Sidney signed the amended document.She also prepared a handwritten note on 24 August 2002 purporting to bequeaththe Brett Avenue property to Juliet.[7] As Sidney became more dependent on Juliet, she agreed to move back to thecity to live with or at least closer to Juliet and Tony. In July 2004 Juliet and Tony,together with Sidney, agreed to purchase three adjoining units at Gladstone Road andTaurarua Terrace, Parnell (collectively the Parnell property). The purchase price was$1,800,000. Sidney contributed $800,000 towards the purchase price. Juliet and Tonysold their home at St Vincent Avenue to fund their contribution to the purchase.[8] In January 2006 Sidney sold the Brett Avenue property for $750,000.[9] Sidney lived in 17B Taurarua Terrace, Parnell for two or so years but her healthdeteriorated and from September 2008 she went into rest home care until her death in2016.The claim and response[10] Juliet claims that she provided services and work for Sidney during herlifetime. She says Sidney made express and implied promises to reward her for theservices and work by leaving her the residence Sidney was living in from time to time,latterly the property at 17B Taurarua Terrace, Parnell. Juliet sought an order vestingthe house at 17B Taurarua Terrace, Parnell in her name, or alternatively, an orderawarding her such amount as the Court considered reasonable in the circumstances.[11] Howard and Stephen opposed the claim. While acknowledging that Juliet wasa loving and caring daughter who provided support to their mother, they disputed thatthe services that Juliet relied on were more than would be provided by any lovingdaughter to her mother. They argued the services did not amount to qualifying servicesfor the purposes of the Act. Further, they denied that Sidney had made any express orimplied promise as alleged by Juliet.High Court judgment[12] Powell J identified the issues to be determined as:2(a) Did Sidney make a promise to leave her home to Juliet as a reward forwork and services performed by Juliet either before or after the promisewas made? And,(b) If the answer is yes, was the promised reward reasonable having regardto the work or services provided?[13] In rejecting Juliet's claim the Judge concluded that neither the bequest of50 Pupuke Road contained in the 1991 will nor the later informal amendment to thatwill, or the handwritten note from August 2002 referring to the Brett Avenue propertyconstituted any form of a general promise that Juliet would be entitled to receivewhatever property Sidney owned at the date of her death.3 In the Judge's view thenote and the informal changes to the 1991 will specifically related to Brett Avenue,and any gift or direction in relation to that property adeemed in the same way as thebequest of Pupuke Road did once the properties were sold.4[14] Next, the Judge considered there was a lack of clarity about what Sidneythought she was getting in terms of the transaction involving the Parnell property.The exact nature of the transaction and the lack of any detailed evidence to supportany sort of promise made by Sidney generally, let alone a promise to reward Juliet forwork or services, meant he was not satisfied Sidney had made a qualifying promise toJuliet in relation to that property.52 At [9].3 At [41].4 At [43].5 At [51].[15] While the Judge accepted that Juliet had provided support to Sidney, he wasnot satisfied the ongoing care and support provided by Juliet was, in the circumstancesof her relationship with Sidney, work or services for the purposes of the Act, still lessthat there was any sufficient nexus with any promise to reward.6[16] As a result, the Judge considered it was not necessary to make any findingsregarding Sidney's capacity at the relevant time or as to the nature of work or servicesprovided by Juliet.7 Nor was it necessary to determine if the promise of a house wouldhave been reasonable, or whether the relief sought by Juliet could have been grantedby the Court.Issues[17] The appeal raises the following issues:(a) Was there a promise for the purposes of the Act?(b) Has Juliet rendered services to or performed work for Sidney beyondthat which may normally be expected of a daughter?(c) Is there a nexus between the services and the promise?(d) Capacity; and(e) If the above issues are resolved in Juliet's favour, what award shouldbe made?Was there a promise for the purposes of the Act?[18] Section 3 of the Act provides:3 Estate of deceased person liable to remunerate persons for workdone under promise of testamentary provision(1) Where in the administration of the estate of any deceased person aclaim is made against the estate founded upon the rendering of6 At [53]–[54].7 At [52].services to or the performance of work for the deceased in his lifetime,and the claimant proves an express or implied promise bythe deceased to reward him for the services or work by making sometestamentary provision for the claimant, whether or not the provisionwas to be of a specified amount or was to relate to specified real orpersonal property, then, subject to the provisions of this Act, the claimshall, to the extent to which the deceased has failed to make thattestamentary provision or otherwise remunerate the claimant (whetheror not a claim for such remuneration could have been enforced in thelifetime of the deceased), be enforceable against the personalrepresentatives of the deceased in the same manner and to the sameextent as if the promise of the deceased were a promise for paymentby the deceased in his lifetime of such amount as may be reasonable,having regard to all the circumstances of the case, including inparticular the circumstances in which the promise was made and theservices were rendered or the work was performed, the value of theservices or work, the value of the testamentary provision promised,the amount of the estate, and the nature and amounts of the claims ofother persons in respect of the estate, whether as creditors,beneficiaries, wife, husband, civil union partner, children, next-of-kin,or otherwise.(2) This section shall apply—(a) whether the services were rendered or the work wasperformed before or after the making of the promise [19] "Promise" is defined in the Act as:2 InterpretationIn this Act, unless the context otherwise requires,—promise includes any statement or representation of fact or intention.[20] In the early case of Nealon v Public Trustee this Court emphasised that for thepurposes of the Act the word "promise" was not used in the sense of a technicalmeaning of an accepted offer amounting to a valid contract.8 It was not restricted inany legal sense. The promise need not amount to a contractual undertaking.[21] In Jones v Public Trustee this Court confirmed that "promise" includesunilateral declarations by a deceased of his or her intention to reward others forservices or work performed by them by the making of a testamentary provision in their8 Nealon v Public Trustee [1949] NZLR 148 (CA).favour.9 It does not matter whether the promise is made before or after services havebeen performed.10[22] Finally in Byrne v Bishop this Court again emphasised the broad concept ofpromise in this context:11[8] The term "promise" under the Act covers declarations which mightnot fall within a dictionary definition of that word and certainly goes beyondany contractual context (Jones v Public Trustee [1962] NZLR 363).It includes a statement or representation of present fact ("I have done X foryou in my will") or intention ("I will do X for you in my will") made eitherbefore, during or after the services or work occur (s 3(2)).[23] Juliet's evidence was that while Sidney was living at Brett Avenue shediscussed the need to change her will if Juliet was to inherit the property. Juliet said:[Sidney] clearly thought that the handwritten change of the address onthe Will, together with her signature would be sufficient. She asked me if Iwould like to live at Brett Avenue. I told her I could imagine myself happilyliving there at some stage.[24] Further, Juliet said that when Sidney agreed to the purchase ofthe Parnell property she had told Juliet that she was going to inherit the propertyanyway and so had no qualms about the amount she was putting towards the purchase.[25] Juliet was cross-examined on the issue of whether Sidney had made a promiseor not. She did not resile from her evidence-in-chief but rather confirmed it:Q You did not know that anything had been promised to you over andabove your brothers?A Well I'd had the conversation with my mother that she intended toleave the property at Brett Avenue to me.And later:A My mother said to me one day you know she wanted to leave herproperty to me and you know she would, that's what her intention wasand would I like to live at Brett Avenue.9 Jones v Public Trustee [1962] NZLR 363 (SC) at 374; and Law Reform (Testamentary Promises)Act 1949, s 3(2).10 At 374.11 Byrne v Bishop [2001] 3 NZLR 780 (CA).[26] Tony confirmed in his evidence that when the purchase of the Parnell propertywas discussed Sidney said she did not mind putting forward slightly more money asshe intended Juliet to inherit her property. He understood from what Sidney told himthat it was her intention to leave her unit at Taurarua Terrace to Juliet.[27] The evidence of the 1991 will, which left Pupuke Road to Juliet, and thehandwritten and signed amendment to that will substituting Brett Avenue forPupuke Road support a finding Sidney intended to leave Juliet the home she was livingin at her death. Even accepting that the original concern in 1991 may have been toprovide security for Juliet in the event her marriage to Tony failed, (as suggested byher brothers) by 2002, 11 years later, the same concerns could not apply. By then,Juliet had also provided significant further services and support to her mother after herfather's death in 1995 and Sidney had discussed leaving Brett Avenue to Juliet withher.[28] Sidney's handwritten note of 24 August 2002 is particularly relevant. It says:I Sidney Howard Le Couteur bequeath my home at10G Brett AvenueTakapunaShore City Aucklandto my daughter Juliet Le Couteur in appreciation for all her loving kindness tome always.On this day 24th August 2002Even though the note was not discovered until after Sidney's death both it and theamendment to the will are consistent with, and supportive of, Juliet's oral evidence ofthe promises Sidney made to her.[29] In Powell v Public Trustee this Court noted that a significant feature of the casewas an attempt by the deceased to leave his whole estate to the claimant by signing acopy of an earlier will, amended so as to change the sole beneficiary from aMr Menzies to Mrs Powell.12 The amended copy was signed, probably withtestamentary intent but the document was not valid as a will because it was notwitnessed. Notwithstanding that defect, the Court relied on it as evidence of atestamentary promise. Similarly, in the present case, although the copy of the 199112 Powell v Public Trustee [2003]1 NZLR 381 (CA) at [3].will as amended and signed by Sidney was ineffective as a testamentary disposition,it is evidence of her intent to benefit Juliet by leaving her home to Juliet. At the timeBrett Avenue was Sidney's home. Later the Taurarua Terrace property became herhome.[30] The Judge did not reject Juliet's evidence as to the promise but rather foundthere was no promise for the purposes of the Act because there was no promise toleave the specific property Sidney was living in at the date of death to Juliet.The bequest of Pupuke Road referred to in the will was adeemed because Sidney nolonger owned that property as at the date of her death. Similarly, Sidney no longerowned Brett Avenue as at her death.[31] We consider that in coming to the conclusion there was no promise the Judgeapplied too strict an approach to the remedial provisions of the Act. The fact thebequest in relation to 50 Pupuke Road in the will adeemed and Brett Avenue was nolonger owned by Sidney at her death does not negate the promise made to Juliet, butrather supports a conclusion that Sidney failed to make the testamentary provision shepromised to make for Juliet. The evidence confirms that Sidney made more than onerepresentation she would leave her home to Juliet. The promise was repeated in avariety of ways in relation to each of the properties she lived in, including the lastproperty at 17B Taurarua Terrace. Juliet's evidence that Sidney had told her at thetime the Parnell properties were purchased that she would inherit the property anyway,was not seriously challenged. Juliet's evidence confirms that on more than oneoccasion, both orally and in writing, Sidney represented that she would leave whatwas at the time her home to Juliet.[32] In context, and considered overall, the evidence confirms that Sidney'sintention in 1991, and 2002 and later, when she contributed to the purchase ofthe Parnell property, was for the property that she was living in at the time to be left toJuliet. There was no suggestion that there was any particular significance about theparticular property itself.[33] We are satisfied that the evidence confirms that Sidney made a promise to leaveJuliet her home on her death.Has Juliet rendered services to, or performed work for Sidney beyond that whichmay normally be expected of a daughter?[34] The Judge accepted that Juliet had provided support and services to Sidney butconsidered that detail of the services was lacking and the general support Julietprovided was no more than that which a loving daughter would provide. He dealt withthe issue of services supplied by Juliet in the following way:13[53] It is clear from the evidence that has been presented that Juliet had anexceptionally good relationship with Mrs le Couteur and that as part of thatrelationship Juliet provided a wide range of support, both practical andemotional. It is likewise clear that the love and support Juliet provided toMrs le Couteur increased over time as Mrs le Couteur's mental conditionworsened and Juliet clearly continued to provide ongoing support afterMrs le Couteur was admitted to the Caughey Preston rest home, albeit on areduced basis. It is equally clear, evidenced by Mrs le Couteur's diary entries,that she greatly appreciated her relationship with Juliet and the ongoingsupport that she provided.[54] Despite this, had it been necessary to do so I would have concludedthere was insufficient detail provided by Juliet and Tony in their evidence tosuggest that the types of services provided were other than would have beenexpected in any loving family relationship. In particular there is nothing inthe types of services that would be unexpected in any family relationship.Whether in this case Juliet could be seen to have gone further than a normalfamily relationship is unclear given the lack of precision in the descriptionsprovided by Juliet. The lack of detail is particularly relevant with regard toany support provided up to at least 2002, when Mrs le Couteur was livingindependently without any clear problems, and I note that even after movinginto 17B Taurarua Terrace Mrs le Couteur retained a large degree ofindependence notwithstanding her diagnosis of Alzheimer's. I am thereforenot satisfied that the ongoing care and support provided by Juliet was, in thecircumstances of her relationship with Mrs le Couteur, work or services forthe purposes of the Act, still less that there was any sufficient nexus with anypromise by Mrs le Couteur to reward Juliet.[35] As noted, it appears the Judge accepted Juliet had provided some services butconsidered there was insufficient detail of the following services despite listing themin the judgment:14(a) assisting Sidney in caring for her father until his death in 1995;(b) including Sidney in Juliet's "family life";13 Le Couteur v Norris, above n 1.14 At [37].(c) assisting Sidney in all of her business and banking dealings;(d) jointly purchasing Manawa Road so that Sidney could live with Julietand her family;(e) assisting Sidney set up Brett Avenue and, in particular, helping in thegarden and selecting new furnishings;(f) attending body corporate meetings associated with Brett Avenue;(g) having Sidney visit and stay overnight sometimes;(h) visiting Sidney regularly at Brett Avenue;(i) providing much reassurance and kindness after Sidney started sufferingfrom memory loss;(j) shopping for Sidney;(k) taking Sidney to medical appointments;(l) staying with Sidney when she was bedridden for a period;(m) providing transport for Sidney after she lost her driver's licence towardsthe end of 2005;(n) not taking up a full-time position in order to be available to supportSidney and take her to medical appointments and attend to her otherneeds;(o) taking Sidney out in her car;(p) purchasing the Parnell properties to enable Sidney to live independentlywhile adjacent to Juliet and her family;(q) packing up Sidney's house at Brett Avenue in anticipation of her moveto Taurarua Terrace;(r) renovating 17B Taurarua Terrace to make it suitable for Sidney;(s) providing Sidney with love and companionship;(t) arranging for Sidney to be admitted to the Caughey Preston Hospitaland rest home when she became unable to live independently;(u) continuing to visit Sidney on Saturdays and Sundays for the eight yearsshe was in Caughey Preston;(v) buying Sidney clothes and blankets, and sewing name labels on to herclothing while she was at Caughey Preston, washing her garments thatcould not be put through the rest home laundry service and bringingflowers regularly;(w) feeding Sidney during visits;(x) liaising with the Caughey Preston medical and other staff to discuss andplan Sidney's care; and(y) maintaining the property and grounds of Sidney's house at 17BTaurarua Terrace.[36] With respect to the Judge's conclusion that there was insufficient detail of theservices, the services listed above do, in a number of instances, provide the detail ofwhat were provided. While other services are of a more general nature they donot really need detailed elaboration for their significance to be accepted (for example(b)–(c), (e)–(h) and (j)–(n)). In any event there was further evidence in relation tosome of the generally expressed services. For instance, Juliet and Tony includedSidney in their family life by taking her on holidays, sharing meals and by taking herout to lunches and dinners. Juliet confirmed that when Sidney was living atTaurarua Terrace she accompanied Juliet's family on all outings, shopping trips andschool events involving Juliet's daughter. Sidney had her evening meals with themmost nights and spent the evenings watching television with them. Juliet then wouldgo with Sidney to her own home and help her get ready for bed. Another example ofthe services is that Juliet consciously chose not to work full-time and took a day offeach Wednesday to take her mother on outings. Later, when Sidney was inCaughey Preston Juliet gave up days on her weekends to spend time with her mother.[37] There is sufficient detail of the services provided. The real issue regarding theservices provided by Juliet is whether the services were over and above that whichmight be expected of a loving daughter in a close family relationship.[38] In Re Welch the Privy Council considered that it may be straining the scope ofthe Act to accept as sufficient, services which were no more than the natural incidentsand consequences of life within a close family group.15[39] In Byrne v Bishop this Court accepted that more was required than the normalexpectations of family life but, importantly, it also confirmed that services could alsoinclude companionship and emotional support which exceeded what would usually beexpected:16To qualify as "services" or "work" under the Act, what has been done for thedeceased must have been beyond the normal expectations of family life orsocial interaction. Services can include not only things done for the deceasedbut also companionship, affection and emotional support exceeding what isnormally to be expected of a relative, a member of the same household, aneighbour or a friend. This Court said in Thwaites v Keruse (1993) 11 FRNZ19 at p 23:"Companionship, affection, cohabitation, may properly be regarded as'services' in some circumstances, where for example the promisor is elderlyor lonely or in poor health. But that cannot be so in the case of youngpeople simply sharing together the pleasures of each other's company in acommon household."[40] Mr Cooper submitted that the services Juliet provided between 1989 and 2005were no more than would be expected in a family context because between 1989 and1995 Sidney's husband Philip was alive and they were living together. No serviceswere required. Between 1995 and 1997 Sidney was generally in good health, living15 Re Welch [1990] 3 NZLR 1 (PC) at 7.16 Byrne v Bishop, above n 11, at [6].independently and managing her own affairs. Between 1997 and 1999 Sidney livedwith Juliet and Tony which was not a successful arrangement and she returned tothe North Shore. While living with Juliet and Tony, Sidney had contributed financiallyto the joint household. Between 1999 and 2005 Sidney lived independently. Afterthat, between 2006 and 2008 Sidney deteriorated and required more care but from2008 shifted to Caughey Preston where she remained until her death. He suggestedthat if any qualifying services were to be found they could only possibly have occurredbetween early 2006 and 2008 when it was apparent Sidney was no longer coping onher own and needed more care, but during that period she had home care help fourdays a week.[41] We are satisfied that the services provided by Juliet far exceeded the normalservices that a dutiful child might provide their aged parent and are not to be confinedto the limited period Mr Cooper argued for. When Philip died in 1995, Sidney was 72years old. From then until she moved in Caughey Preston in 2008 at the age of 85, aperiod of some 13 years, Juliet and Tony included Sidney as part of their family invarious ways and provided an extensive range of services and support for her.We consider Howard and Stephen have over-emphasised the significance of Sidney'sdecision to return to live on the North Shore. She may have been upset on an occasionwhen Tony asked her to sign loan documents, but there was no breakdown in therelationship with Juliet. While Sidney chose to return to the North Shore in 2000, theevidence confirms Juliet continued her support of her mother at that time, even thoughthat entailed additional time travelling over the Harbour Bridge. Further, it was aftershe returned to North Shore that Sidney made the promise in relation to Brett Avenue.[42] Juliet's involvement in her ongoing care at that time in particular enabledSidney to live independently and also to enjoy courses of the University of theThird Age and her garden. Without the support of Juliet that may well not have beenpossible. Further, as Sidney grew older and became more and more dependent, thefact Juliet (and Tony) welcomed her into their family life was significant.As Hardie Boys J said in Thwaites v Keruse:1717 Thwaites v Keruse (1993) 11 FRNZ 19 (CA) at 23."Companionship, affection, cohabitation, may properly be regarded as"services" in some circumstances, where for example the promisor is elderlyor lonely or in poor health.[43] In Re Fagan (Deceased) Baragwanath J suggested that:18 the apparent difference may be resolved in conventional cases by firstassessing the norm, as was done in Re Welch; and then deciding whether thebenefits conferred significantly exceed that norm, in which case, as otherauthorities decide, an award — and in a strong case a substantial award —may be made taking into account competing claims, even though neitherdeceased nor plaintiff viewed the matter in commercial terms.[44] In Samuels v Atkinson after referring to the above passages this Court said:19[53] To put this another way, it has been regarded as appropriate toendeavour to identify "something extra" which takes the facts of the particularcase beyond the relatively narrow confines contemplated by the Privy Councilin Re Welch. This approach to testamentary promises claims, if correctlyfollowed, has the added benefit of making the quantification of claims morestraightforward.[45] In the present case Juliet provided companionship, family life, support andaffection well beyond the bonds of that of a dutiful daughter. While it is not acomparative exercise, Juliet's care for her mother enabled her brothers to lead theirown separate lives without them having to concern themselves about Sidney's care.[46] We find that the services Juliet provided were qualifying services for thepurposes of the Act.Is there a nexus between the services and the promise?[47] If he had been required to determine the issue, the Judge said he would havefound there was no nexus between the services provided and the promise.[48] However that conclusion was no doubt influenced by the Judge's earlierconclusions that the services were no more than examples of the usual care a lovingdaughter would provide her mother, and there was no promise for the purposes ofthe Act.18 Re Fagan (Deceased) [1999] NZFLR 222 (HC) at 236.19 Samuels v Atkinson [2009] NZCA 556, [2010] NZFLR 980.[49] It may be more difficult to establish a nexus in a family situation, but evenwhere there are family ties and relationships the rendering of services within a familycan still provide a sufficient nexus. In Re Archer Hillyer J noted the following passagefrom Jones v Public Trustee:20 we do not consider that the claimant should be refused relief simply on theground that he may have been influenced in part by more laudableconsiderations than purely mercenary ones. Thus, in the case of a relative whofeels a moral obligation to assist an elderly member of his family, usually itwould be unreasonable to conclude that he would not be encouraged andcomforted in the knowledge that it was the intention of the deceased that hisservices should not go unrewarded. Indeed, now that it is clear that thepromise may relate to past services, the motive of the person rendering theservices ceases to be of any importance in the case of a promise to reward forpast services.[50] In Leach v Perpetual Trustees Estate and Agency Co of New Zealand Ltdthe Judge at first instance had declined the claim on the ground there was not asufficient nexus between the promise and the service. The finding was overturned bythe Court of Appeal.21 Richardson J said:It is clear from Jones v. Public Trustee that, if and to the extent that thetestamentary provision promised was in the nature of a reward for pastservices, their motivation in providing those services is immaterial.[51] Hillyer J in Re Archer concluded, after considering the above passages:22Finally, it is sufficient that the promise be in part as a reward for services.Family ties and other considerations may also be perceived as havinginfluenced the making of the promise. That does not exclude a finding thatthe rendering of services was a further consideration.[52] In the present case while family ties may have influenced Sidney, it seems clearthat she was also moved to acknowledge what Juliet had done for her. There is expressevidence of the nexus between the promise and the services in the note found by Julietafter Sidney's death, and in Sidney's diary notes. Importantly, the August 2002 noteconfirms Sidney's intention to bequeath her then home to Juliet "in appreciation forall her loving kindness to me always". The use of that wording ties the intended giftof the home to Juliet's loving kindness (i.e. services) and confirms that the gift is made20 Re Archer [1990] 3 NZLR 737 (HC) at 745, citing Jones v Public Trustee, above n 9, at 374–375.21 Re Archer, above n 20, at 745, citing Leach v Perpetual Trustees Estate and Agency Co of NewZealand Ltd CA48-88, 20 March 1990.22 Re Archer, above n 20, at 745–746.for that reason. It is an express recognition of the value Sidney placed on the servicesprovided by Juliet, rather than out of any sense of obligation as a parent to a child.It is irrelevant that Juliet was not aware of the note until after Sidney's death.[53] Further, there are a number of relevant diary entries which confirm Sidneyrecognised her obligation to Juliet for the services and support she had provided her.It is sufficient to note the following entries:17 May 2005:Juliet came this afternoon after work. It is wet and rainy. Juliet has to pick upBettina. Spoke to Tony — I am so very fortunate.June 2005:Dear Juliet so kind and patient with me. So generous in every way to me.The joy of my life — tears blur my eyes as I scribble this. I am lookingforward to my new life. Cannot be too far off.10 December 2005:Dear Juliet so kind always — so busy. The sooner I go the easier for her in somany ways.It seems Sidney sensed she was a burden on Juliet. She acknowledged the value ofthe services Juliet provided her. In that context it is not surprising that Sidney repeatedher promise to reward Juliet.[54] Tony's evidence confirmed the sentiment expressed in the diary notes. He said:[Sidney] often expressed concern to me about whether or not Juliet wasexcessively burdened by the care and support she was undertaking forher She agonised over whether Juliet should spend so much time with her.[55] We find there was a sufficient nexus between the relevant promises and theservices Juliet provided Sidney.Capacity[56] Mr Cooper submitted that there was overwhelming evidence in 2005 aroundthe time the Parnell property was purchased that Sidney was exhibiting significantfunction and memory impairment as a result of Alzheimer's disease. Mr Norris,the solicitor involved at the time, noted that Sidney deferred to Juliet about the detailof the purchase.[57] Mr Cooper submitted the Court could not be satisfied that Sidney had thecapacity to understand the nature or effect of the promise she was making and that, ifSidney had made a qualifying promise to Juliet, she did not have sufficient capacity todo so, so that any promise would be unenforceable. The Judge did not directly addressthe issue of capacity as it was unnecessary for him to do so.[58] Sidney was first referred by her doctor, Dr Vanessa Fardon, to the Home andOlder Adults' Service of the Waitemata District Health Board in May 2001. At thetime she was aged 78. The consultant noted that while Sidney disclosed some memoryloss she was attending classes at the University of the Third Age, taking early modernEuropean history, history of music, and architecture. She found the subject matterhard to follow and to remember. She reported that things slipped her mind. However,the consultant recorded that Sidney presented at the time as a quiet, intelligent,articulate, slim older woman. Her mental status score was 30/30 (normal).The consultant noted he was uncertain whether she had benign forgetfulness whichoccurs as a normal feature of ageing or whether she had an early but mild dementingillness. He had arranged a CT scan which he expected to be normal. It is notable thatSidney made the note regarding Brett Avenue just over a year later, in August 2002.There is no evidence of a lack of capacity at the time.[59] It appears Sidney was not referred back to a consultant until January 2005.The reason for the referral was her deteriorating memory. The consultant noted therehad been a gradual deterioration without any hint of sudden events. Sidney did not fitinto the symptom category of a neuro-degenerative disorder such as Alzheimer'sdisease although the diagnosis remained possible. He thought Sidney would have theinsight to understand the implications of making sure a trusted family member orfriend had an enduring power of attorney, in other words, sufficient mental capacity toexecute such documents. The consultant noted her recent Minimental Status score of27/30 was likely to be abnormal. She had significant loss of immediate recall andshort-term memory and the relatively normal score was likely to reflect her higherpre-morbid intellectual status and achievement.[60] By June 2005 when she was seen again, the consultant reported to Dr Fardonthat by this time Sidney was diagnosed with Alzheimer's disease (probable — mild).Amongst other matters he noted that he had discussed driving but considered that atthat stage Sidney was safe to continue driving. The doctor said:She is aware and accepting (in fact raised it herself) that at some stage she willneed to stop driving and will be keeping a close eye on this herself as well asher daughter, yourself and I will also. Enduring Powers of Attorney are inplace.Again, the report does not support a finding of incapacity in terms of testamentarycapacity at the time.[61] In any event, by June 2005 the promises relied on in relation to Brett Avenueand the Parnell property had been made and the Parnell property purchased. We aresatisfied that at all relevant times Sidney had sufficient testamentary capacity to makeenforceable promises.Quantum[62] Sidney failed to make the testamentary provision promised to Juliet for theservices and work she carried out for her. Juliet has made out her claim for relief underthe Act.[63] We have considered whether the matter should be referred back tothe High Court on the question of relief but consider it better for the parties to havethat particular issue resolved at this time.[64] The Court is not able to direct the transfer of the property at17B Taurarua Terrace to Juliet as it is not held in Sidney's name. But the Court maymake an award of such amount as may be reasonable, having regard to relevantcircumstances. In making the award the Court may consider the circumstances inwhich the promise was made, the circumstances in which the services were performed,the value of the services,23 the value of the promise, the amount of the estate and theclaims of others, in this case Howard and Stephen.Circumstances and value of the promise[65] We have already discussed the circumstances in which the promises were madeand the circumstances and nature of the services.Value of the estate[66] Mr Norris, an executor of the estate, prepared a statement of assets andliabilities for the estate as at date of death of 8 April 2016. That recorded a net valueof the estate of $2,239,243 exclusive of chattels and personal effects. The value of$2.239 million included $800,000 noted as funds applied by Sidney to the purchase ofthe Parnell property.[67] The position in relation to Sidney's interest in the Parnell property is presentlyunresolved. At the time the three units were purchased Sidney contributed $800,000towards the total purchase price of $1,800,000. The units all have separate titles.Sidney lived in one of the units, 17B Taurarua Terrace. Juliet and Tony and theirfamily lived in one unit and the remaining unit was rented. Those two units are inJuliet and Tony's name. However, the property at 17B Taurarua Terrace was nevertransferred into Sidney's name. Instead a caveat was registered in the name of Julietand Tony as they were recorded as the purchasers of all three units on the agreementfor sale and purchase. There is no issue with the vendors who were, and, weunderstand remain, willing to transfer the property to a nominated purchaser. It seemsthat the matter was never resolved because concerns were raised about the need toarrange independent advice for Sidney. Regrettably although there was an exchangeof correspondence between the two firms of lawyers involved at the time the matterwas never finally resolved.[68] Mr Cooper submitted that as the $800,000 contributed by Sidney representedfour-ninths of the then purchase price of $1.8 million for the three properties, Sidney's23 It is generally for the parties to assess the merits of the benefits being exchanged: Masters v ThePublic Trustee of New Zealand [2012] NZHC 1168 at [54].estate is entitled to four-ninths of the value of three properties even though two of thethree are held in the name of Juliet and Tony. Separate proceedings have been issuedseeking orders to give effect to that outcome.[69] Juliet and Tony's position is that it was always intended that Sidney would ownthe unit she lived in, 17B Taurarua Terrace. Subject to Juliet's claim, they considerthe property represents Sidney's interest in the Parnell property.[70] According to Quotable Value, as at July 2017 the three properties had acombined value of $3,650,000. That is made up as follows:(a) 17A Taurarua Terrace $1,220,000(b) 17B Taurarua Terrace $980,000(c) 51 Gladstone Road $1,450,000$3,650,000On the basis of those valuations and substituting the $800,000 with a four-ninths shareof the total value for the Parnell properties of $3,650,000, Sidney's estate would beworth approximately $3,060,000.[71] If, on the other hand, the position is as Juliet and Tony understand it to be, andSidney is instead entitled to 17B Taurarua Terrace, then, substituting the values of 17Bas at July 2017 Sidney's estate would be worth approximately $2,419,000.[72] There is evidence that the value of 17B Taurarua Terrace as at16 February 2018 was estimated as between $1.225 million to $1.275 million, with amid-point of $1.25 million. If 17B Taurarua Terrace were included as part of Sidney'sestate at that value, that in turn would value Sidney's estate at approximately$2,689,000.[73] On those scenarios, Sidney's estate is worth between $2,420,000 and$3,060,000 approximately.[74] In fixing the amount to be awarded to Juliet, it is relevant to have regard toother benefits that Juliet and Tony have enjoyed and the nature and amounts of otherclaims on the estate.[75] The services provided were a substantial level of comfort and support.However it has to be acknowledged they were made in the context of a strongmother/daughter relationship and that Juliet would have enjoyed positive benefits fromthat relationship also. Juliet enjoyed her mother's company. In addition, Juliet andTony received other tangible benefits from their relationship with Sidney.While Sidney was supported by them, Juliet and Tony were able to purchase the units,including the rental unit, and also received a gift of $15,000 during Sidney's life. In hisevidence Stephen has attributed a value of $605,000 (approximately) to17B Taurarua Terrace calculated on the respective value of the units when purchasedbased on the then CVs in proportion to the purchase price of $1.8 million. On thatbasis Juliet and Tony have already received a further benefit of approximately$195,000 being the difference between the $800,000 contributed by Sidney and theactual value of 17B Taurarua Terrace. The difference, the $195,000, can be attributedto the remaining two units which are owned by Juliet and Tony.[76] Relief under s 3 of the Act is discretionary. We consider that a reasonable sumin the present circumstances is the sum of $590,000. While we find that Sidneypromised to leave Juliet her home and was prepared to contribute $800,000 towardsthe purchase of 17B Taurarua Terrace, Juliet also received a benefit from her closerelationship with her mother (and in addition tangible benefits of $15,000, and thefurther contribution which enabled Juliet and Tony to purchase the other two units inthe Parnell property). It is also relevant that Juliet will receive a one-third share of thebalance of Sidney's estate in addition to the further provision under the Act.Result[77] The appeal is allowed.[78] The judgment of the High Court is set aside.[79] Juliet is awarded $590,000 from her mother's estate under s 3 of the Act.[80] Howard and Stephen must pay Juliet costs for a standard appeal on a band Abasis and usual disbursements.[81] Costs in the High Court are to be determined in that Court.Solicitors:Martelli McKegg, Auckland for AppellantCavell Leitch, Auckland for Interested Parties