MOON v PUBLIC TRUST & ANOR [2018] NZHC 1169

MOON v PUBLIC TRUST & ANOR [2018] NZHC 1169 [23 May 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-1640[2018] NZHC 1169UNDER Part 18 of the High Court Rules and theFamily Protection Act 1955IN THE MATTER of the estate of MARY KATHLEENDOYLE (deceased)BETWEEN STEVEN KENNETH MOONPlaintiffANDANDPUBLIC TRUST as Trustee and Executor ofthe Estate of Mary Kathleen DoyleDefendantPATRICK DAVID DOYLEInterested PartyHearing: 21-22 March 2018Appearances: S Callanan and K Mortimer for the PlaintiffC Martin for the DefendantJ Moss for the Interested PartyJudgment: 23 May 2018JUDGMENT OF POWELL JThis judgment was delivered by me on 23 May 2018 at 3.30 pm pursuant toR 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors: Lewis Callanan, AucklandPublic Trust, AucklandCashmere Law, ChristchurchCounsel: J Moss, Christchurch[1] There is no dispute that Steven Moon ("Steven") and Mary Doyle ("Mary")had a relationship which lasted for some 27 years that ended only with Mary's death,after a long battle with cancer, in January 2017.[2] The nature of that relationship has been called into question after Marybequeathed only her ashes to Steven. As a result Steven has sought "propermaintenance and support" from Mary's estate. Specifically Steven has claimed thewhole of Mary's estate, apart from the specific items listed in the Schedule to thisjudgment, including the estate's principal asset, Mary's home in Fairview Avenue, nearAlbany, which was left to her older brother, Patrick Doyle ("Patrick").[3] Steven's claim is made pursuant to s 4 of the Family Protection Act 1955 ("theAct"). This section provides:4 Claims against estate of deceased person for maintenance(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.[4] It is common ground that Steven is only eligible to apply under the Act if hewas:A de facto partner who was living in a de facto relationship with [Mary] at thedate of her death.1[5] Steven's claim is opposed by Patrick. While Patrick acknowledges thelongstanding relationship between Steven and Mary he:(a) questions whether Mary would have regarded her relationship withSteven as being in the nature of a de facto relationship for the purposesof the Act; and1 Family Protection Act 1955, s 3(1)(aa).(b) argues there is otherwise no failure to make adequate provision forSteven given his own financial position.[6] The first issue to be determined by the Court in this proceeding is thereforewhether Steven and Mary's relationship was a de facto relationship. Only if it was isthe Court required to go on to consider:(a) whether in terms of s 4(1) of the Act Mary failed to make adequateprovision for Steven in her will; and(b) if so, how that is to be remedied.Issue One – Were Steven and Mary in a de facto relationship?[7] For the purposes of the Act "de facto partner" and "de facto relationship" havethe meaning as set out in s 2 of the Property (Relationships) Act 1976. This section inturn leads to the key definition for the purposes of these proceedings, the definition of"de facto relationship" set out in s 2D of the Property (Relationships) Act. Section 2Dprovides:2D Meaning of de facto relationship(1) For the purposes of this Act, a de facto relationship is a relationshipbetween 2 persons (whether a man and a woman, or a man and a man,or a woman and a woman)—(a) who are both aged 18 years or older; and(b) who live together as a couple; and(c) who are not married to, or in a civil union with, one another.(2) In determining whether 2 persons live together as a couple, all thecircumstances of the relationship are to be taken into account,including any of the following matters that are relevant in a particularcase:(a) the duration of the relationship:(b) the nature and extent of common residence:(c) whether or not a sexual relationship exists:(d) the degree of financial dependence or interdependence, and anyarrangements for financial support, between the parties:(e) the ownership, use, and acquisition of property:(f) the degree of mutual commitment to a shared life:(g) the care and support of children:(h) the performance of household duties:(i) the reputation and public aspects of the relationship.(3) In determining whether 2 persons live together as a couple, —(a) no finding in respect of any of the matters stated in subsection(2), or in respect of any combination of them, is to be regardedas necessary; and(b) a Court is entitled to have regard to such matters, and to attachsuch weight to any matter, as may seem appropriate to the Courtin the circumstances of the case.(4) For the purposes of this Act, a de facto relationship ends if—(a) the de facto partners cease to live together as a couple; or(b) 1 of the de facto partners dies.[8] As a Full Court of the High Court noted in Scragg v Scott:2Factors that may be taken into account in determining whether a de factorelationship exists for the purpose of the Act include the matters contained ins 2D(2). Cases decided before enactment of the legislation may provide someassistance but care must be taken because they often were concerned with thequestion of whether the parties were living together in a relationship "in thenature of marriage" for the purpose of Social Welfare legislation; Thompson vDSW [1994] 2 NZLR 369; (1993) 11 FRNZ 402; Ruka v DSW [1997] 1 NZLR154; (1996) 14 FRNZ 622 (CA); or were cases where cases where unmarriedcouples' property rights were determined pursuant to constructive or expresstrust principles culminating in the factors discussed in Gillies v Keogh [1989]2 NZLR 327; (1989) 5 FRNZ 490 (CA); and Lankow v Rose [1995] 1 NZLR277; (1994) 12 FRNZ 682 (CA). In Thompson v DSW Tipping J provided achecklist containing a number of matters to be considered when consideringwhether parties lived in a relationship in the nature of marriage. Heemphasised, however, that whether or not the questions were answeredpositively did not necessarily mean that the relationship existed, or wasexcluded. The outcome depended upon the weight and effect of all theanswers to particular questions or considerations so as to assess the overallpicture, with the ultimate decision always being one of fact and degree. Thosecomments remain appropriate and indeed are embodied in the legislation.The incidents and attributes of marriage, or for that matter de facto2 Scragg v Scott (2006) 25 FRNZ 942 (HC) at [25] (emphasis added).relationships, are not the same for all people and the ultimate question isto be answered in a broad practical way weighing up all thecircumstances.[9] The Court went on to note:3There will be cases which are finely balanced where it will not be easy to saywhether a particular relationship moves across the line into a de factorelationship. Usually they will be cases where the parties are in a contextbecause of the Property (Relationships) Act 1976, and one claims that therelationship crossed the line and the other disputes that. This is such a case.The test must inevitably be evaluative, with the Judge having to [weight] upas best he or she can all of the factors – not only those contained in s 2D, butalso any others there may be – and applying a common sense objective[judgement] to the particular case. Counsel has helpfully provided to us inAppendix form a summary of a large number of cases in the benefit fraudcontext pursuant to the Social Security Act 1964, the constructive trust casesand a number of cases decided in the Family Court in respect of the Property(Relationships) Act 1976. They are all factual findings based upon theevidence in individual cases but can only be viewed as examples.Generalisations are to be avoided because every case is fact specific. Forexample, it might be thought that if a man and woman do not live together, orhave a sexual relationship, nor ever plan to live together, or have children,then they could not be in a de facto relationship. Yet that was the factualsituation involved in the case of Horsfield v Giltrap (2001) 20 FRNZ 404;(2001) 1 NZSC 40,541 (CA) (a constructive and express trust case) and theparties regarded themselves as a close and devoted couple who had committedthemselves to each other and accumulated joint assets and were:a partnership between a man and a woman, who professed love foreach other and were prepared to commit to each other their emotionaland financial resources.Although it was said that that was "not a de facto union" were have no doubtthat it would have qualified as a "de facto relationship" under the presentlegislation if such had been in force.[10] It is clear from both s 2D and the authorities that whether or not two people"live together as a couple" for the purposes of s 2D does not require them to have beenphysically living together. Instead cohabitation is simply one factor to be consideredand is not a prerequisite for a de facto relationship.3 At [36] – [37] (emphasis added).The nature of Steven and Mary's relationship[11] It is not disputed that Steven and Mary first met when they were both workingat East Coast Bays City Council in the late 1970s. It was not however until early 1989when Steven was 33 and Mary 36 that they started dating, and by that time both werealready living in their own homes; Steven in a property next to his mother's in Torbayfrom which he eventually operated his engineering contracting business, and Mary inher Fairview Avenue home, with Mary having already paid off her mortgage.[12] Even at the outset of their relationship Mary was suffering from a significantmedical condition, which although never formally diagnosed appears to have beensome type of chronic fatigue syndrome. Mary had previously been very active,enjoying outdoor activities and horse riding in particular, but by the time Steven andMary first started going out Mary was already suffering pain in her right knee whichwas making walking difficult, and she was on sick leave from her job as a meter readerfor the power board. The pain progressively spread to Mary's other knee, and then toher back, arm muscles, joints, and to the muscles in her throat, which ultimately madeit difficult for Mary to talk. Within 18 months of the relationship commencing Marywas effectively restricted to a wheelchair and also suffering very badly from fatiguewhich required her to go to bed early and get up late, and to rest in the afternoon.There is no doubt that Mary's medical condition severely affected the activities Stevenand Mary were able to do as a couple, as Mary's ability to get out and do things orsocialise became increasingly difficult.[13] Mary's medical condition also appears to have played a significant role in thefact that Steven and Mary never physically lived together. While there is someevidence that Steven and Mary did look for a joint property together in the 1990s, thiswas ultimately not pursued as both found their respective properties suited theirdifferent needs, and Steven and Mary continued to spend the nights at their respectivehouses.[14] The routine that Steven and Mary established over time was described bySteven in his evidence in the following terms:I regularly start work at 7.30 am and Mary would not get up until around 9.00am. Mary would text me during the day.I would often text Mary from work around 4-5pm to ask what she felt like fordinner. I would usually go back to my house and clean up after work, becausethere wasn't enough water at Mary's for me to have a shower everyday,especially over summer. I have detailed in my first affidavit how Mary'shouse had only a small water tank and that I would bring around containers ofwater for drinking and cooking.It is difficult for me to remember the early days of our relationship since itwas over twenty-seven years ago.I would then get takeaways and/or any ingredients for our dinner at thesupermarket. At the same time, I would also pick up any medication Maryneeded from the chemist.When I got to Fairview Avenue, I would check the mail before going inside tosee Mary. We would discuss our day and then I would usually put the dishesaway from the day before, feed the cat and cook dinner if we weren't havingtakeaways.I would normally serve Mary dinner in bed and I would sit beside her to havedinner. We did have dinner a few times around the table. Mary's kitchen wastoo small for two people to cook together and once I took over the cookingMary would just leave me to get on with making our dinner.After dinner we would normally have a cup of tea together and talk, watch tvand generally spend time together until Mary became too tired and would needto go to sleep. I would say this was usually around 9.30 pm. I would make athermos of tea for Mary to have in the morning and I would leave this thermosby her beside at night.I would do the dishes from dinner, tidy the kitchen up a bit and do the choresyou would normally expect after dinner. Mary insisted that the dishes wereleft to air dry which I why I would have to put them away the next evening.We did not own a dishwasher because the kitchen was too small to fit one.Mary and I looked into buying a small bench top model, but even those weretoo big.I helped Mary get changed for bed and would kiss her goodnight before goingto my house.I would say that our above routine started once Mary became wheelchairbound, which was in the first year to eighteen months of our relationship. Thisroutine just became a normal pattern for us.I would lift Mary in and out of chairs and cars, be we had Fairview Avenue setup so that she could get around as much as possible without needing lifting.[15] Despite the limitations of the relationship, Steven's unchallenged evidence wasthat he and Mary had a normal sexual relationship up until the time Mary wasdiagnosed with terminal cancer in 2015.[16] After Mary's diagnosis Steven continued to provide support including takingMary to specialist and other medical appointments as necessary. Steven was alreadyMary's attorney under an Enduring Power of Attorney – Personal Care and Welfareand eventually Mary gave Steven authority to discuss her medical condition with hertreating specialists.[17] In 2016 Steven was himself badly injured in a bicycle accident in which hesuffered significant injuries and was required to be kept in an induced coma for aperiod. Mary was recognised as Steven's next of kin while he was receiving treatment,and Steven was eventually discharged back to Mary's home. As he was recoveringfrom his injuries it appears Steven proposed to Mary, and while Mary did not accept,she did allow Steven to buy her a ring, which she wore up until she died on 8 January2017.[18] Sometime before she died Mary wrote the following note to Steven, which hereceived after her death with regard to her ashes which she had left to him:Steve.I'm leaving you the most precious thing:- me. (even though it's in a box). Idon't want it scattered anywhere. Please keep – hide it away in a cupboard orwhatever. At least it cant talk!Always loved you and didn't want to leaveMaryP.S Thank you for being there for me for all these years. And putting up withme. Look after Jesspurr.[19] After Mary died, Steven's role in the relationship was acknowledged in bothMary's death notice, which recorded that Mary was "partner of Steve", as well as byMary's younger brother, Anthony Doyle ("Anthony"), who at the beginning of hiseulogy at Mary's funeral stated: I'd like to thank you all for coming here today to honour Mary's memoryand taking the time to do that and also for having taken the time to support herboth in her final illness and through some fairly rough years at times beforethat. Ah, before going any further, while I've still go a voice, I just wannathank and acknowledge Steven, Mary's partner for so long. Steve gave her,ah, an enormous amount in many, many ways and was never, ever far fromher thoughts in every single conversation I had with her. She talked aboutSteve, how he was, what he was doing and and, ah, her concern for him.Patrick's position[20] Patrick articulated his concerns about the nature of Steven and Mary'srelationship in the following terms:I will say that I see Steven as having grieved for Mary, no question about that.And I don't think there's any question that he's considered himself a partnerto my sister for all that, most of that time. The question is whether Maryconsidered it the same thing and there's considerable evidence, as far as I cansee, that she didn't. And that's basically, for me that's the nub of the contest Isuppose. And if my sister had, for example, said, "Steve's my partner," ifshe'd named him as partner in her will, I wouldn't be sitting here now I don'tbelieve.[21] Patrick, and other members of the Doyle family including Anthony, as well asPatrick's two daughters, his ex-wife and current partner all commented that they hadnever seen Steven at Doyle family events, with the exception of Anthony's weddingin 1990 and the funeral of Mary's father John Patrick Doyle in 2016. In additionPatrick's daughter Jessica, who had understood from John Patrick Doyle that Stevenwas Mary's partner recalled Mary denying that Steven was her boyfriend insteadcategorising him as "a much devoted lifelong friend".[22] Key issues identified on behalf of Patrick also included:(a) that Mary constantly used the term friend to describe Steven in officialdocuments including Enduring Power of Attorney – Personal Care andWelfare, hospital/medical forms relating to her ongoing cancertreatment, and in questionnaires and other documents prepared by thePublic Trust with regard to the preparation and execution of her finalwill. Mary in fact always described herself as single rather than "livingas a de facto partner" and when asked by the Public Trust if Steven washer partner at the time she made her will in September 2015 "she saidhe was companion only"; and(b) while Steven was upset that Mary had "not put him first in death as hehad put her first in life", Steven had also not provided for Mary in hisown will. Instead up until September 2016 Mary was, together withSteven's mother, a discretionary beneficiary in Steven's family trustwhen the trust deed was amended so that only Mary's medical treatmentcould be paid for by the Trust.[23] As a result, in his submissions on behalf of Patrick, Mr Moss submitted thatwhile the evidence established "a long and close relationship, the evidence supports afinding that it was one of friend not husband. In short Mary and Steven did not havea close loving relationship in the nature of a couple living together as is required bys 2D".[24] In Mr Moss's submission the relationship failed to meet the s 2D criteria in thefollowing respects:(a) There was no common residence because [Steven] did not live atMary's. He may have visited most days but he did not "live" there inthe sense that his things were kept there and there were mutualhousehold items;(b) There was a limited "public relationship".(c) There was no shared assets whatsoever;(d) There was no real shared finances. Simply put, the evidence putforward by Steven is very weak even in respect of buying a smallamount of groceries, takeaways, and pharmacy items;(e) There is no child of the relationship;(f) There did not appear to be a mutual commitment to a shared life asMary set out her status as single on every significant legal form inevidence;(g) There is limited evidence of household duties (dinner and washing up)being performed by Mr Moon as Mary had a carer for 10 hours a day.Discussion and Analysis – Issue One[25] It is clear, as not just Patrick has noted, that the relationship shared by Stevenand Mary was quite different from many other relationships. As it was frequentlydescribed in the course of this proceeding, it was unusual, or unconventional.[26] In that context Patrick's concerns, largely supported by the wider Doyle family,are fairly brought before the Court as the family seeks to honour how Mary may haveviewed her relationship with Steven.[27] As Mr Moss has pointed out, a number of the s 2D criteria are absent or presentonly in a limited way, but as Mr Moss conceded in his oral submissions before me, theissue is finely balanced.[28] In particular, and notwithstanding the matters identified by Mr Moss, there arein fact a wide range of matters that support the existence of a de facto relationship forthe purposes of the Property (Relationships) Act. First and foremost is theacknowledged and significant duration of the relationship, of some 27 years(s 2D(2)(a)), a duration that of and by itself supports at least some indication of amutual commitment to a shared life (s 2D(2)(f)). Likewise, as noted above, theexistence of a normal sexual relationship up until Mary was diagnosed with cancer isnot disputed (s 2D(2)(c)).[29] The biggest area of contention really surrounds the reputation and publicaspects of the relationship (section 2D(2)(i)). As noted, Mr Moss has submitted thatthis was "limited" and there is little doubt that Steven appears to have largely avoidedparticipation in wider Doyle family functions, although the evidence from John PatrickDoyle's widow, Pamela Doyle, is that Steven had a good relationship with Mary'sfather John Patrick Doyle to the point Steven cooked them Christmas dinner "a coupleof times", and as noted at [21] above, Jessica Doyle understood from John PatrickDoyle that Steven was Mary's partner. Pamela Doyle was herself clear that Steven"was Mary's partner up and until her death" and noted in particular:I saw Steve as a caring and loving man who loved Mary and would doanything for her, which was a great deal. In my opinion Mary reciprocatedthese feelings to Steve and I never had any reason to believe otherwise.[30] Pamela Doyle's impression was supported by the evidence presented on behalfof the Moon family, and in particular by Steven's sister, Vicki Moon.[31] Like Pamela Doyle, Vicki Moon was clear that Mary was Steven's partner upuntil her death in January 2017. Vicki Moon described in particular how after Steven'sbike accident in January 2016 she was visiting him with her brother Douglas Moonand his wife Toni where they met Mary and Anthony at the hospital. In Ms Moon'swords:We all introduced ourselves to the doctor and outlined how we were relatedto Steven. At this time, Douglas pointed out to the doctors that Mary wasSteven's partner. Mary acknowledged this and agreed with Douglas'comment. From that point on the doctor primarily addressed his commentsto Mary. Throughout the briefing we all recognised Mary as being the next-of-kin and deferred to her wishes regarding channels for communication aswe went forward.[32] Not only does the incident recounted by Ms Moon confirm how therelationship was understood by the Moon family, but the accuracy of Ms Moon'saccount was largely confirmed by Anthony. While Anthony did indicate someunexplained reluctance on Mary's part to be identified as Steven's partner, heconfirmed that she did in fact do so.[33] The perception that Steven and Mary were partners in a de facto sense was notlimited to the Moon family however, as three other friends of both Mary and Stevenindependently confirmed their respective understandings that Steven and Mary werein a long term de facto relationship. First, Maxine Blake, a childhood friend who grewup in the same street as Mary and who spoke at Mary's funeral, stated:Mary used to talk and text me a lot about Steve. When I used to visit Mary, itwould always be during work hours, so Steve would be at work because heran his own business. Mary would say things to me like "Steve will be homesoon" which to me meant that her place was their home and it never crossedmy mind that they were not partners. The way Mary spoke to me about Stevewas the same way any other couple would speak about their partner.I was aware that Steve had a house of his own, but that it was not very faraway. I got the impression that in the early years of their relationship, theyhad wanted to find a place together in the country. This did not surprise meas Mary loved horses and would have given anything to have horses aroundher at her own property. However, unfortunately it was clear that due to herpoor health and mobility issues, living in the country was not an option forMary and Steve.I asked Mary why they did not move in together and Mary told me that Stevewould have, but that Steve's elderly mother lived next door to him and heavilyrelied on him in the later years. I also got the impression that after so manyyears together, Mary and Steve just got into a routine, like many couples do,and that their living arrangement worked for them and they did not see theneed to change an arrangement that, while not perfect, suited them.It was clear to me that Mary and Steve were a couple. I never thought of Maryas a single woman. I never thought that Steve was just a platonic friend. Iwas not living with Mary, but I always understood that they had a romanticand sexual relationship.[34] Ruth Henderson, a former flatmate and friend to Mary for over 37 years,likewise confirmed:In 1993 following our move to Kaipara Flats, I invited Mary to visit and shebrought Steve with her. It was clear at that time that Mary and Steve weremore than just friends. They had the rapport of two people in a relationship.They acted like a couple. They had an easy way together and there was noquestion in my mind that Steve was not just a platonic friend, but that he washer partner. Annexed [to my affidavit] is a copy of Mary and Steve's guestbook entry from their stay.My husband Ian and I have moved several times since then and we now liveon Kawau Island. However, I have always kept in touch with Mary by phone,by text or occasionally visiting. Mary did not really email, which is evidencedby the fact her email was ihatecomputers798@gmail.com.I would have made the effort to catch up in person with Mary more often overthe years if I had thought that she was alone and needed my help. However, Iknew that she had Steve, so she had a partner and she was in a lovingrelationship. Therefore Mary was not someone who was alone and neededcompany.Whenever I spoke to Mary, the conversations we had always included Steveand what he was doing. Mary and I both shared [a] love of gardening and shewould tell me how she and Steve were planning to go to the garden centre orsome such practical thing. They didn't tend to go out to socialise. Steve wasalways mentioned in our conversations and they shared their lives even if theyslept in different houses. The fact they lived in separate houses never meant Isaw them any differently as a couple. I believe Steve was to Mary what myhusband Ian is to me, he was her steady companion, friend and partner.[35] Ms Henderson went on to describe the effect of Mary's health on therelationship:I feel I must emphasise how much Mary's health effected the lives of bothSteve and Mary. Whereas Mary had been an outgoing lively woman with aninterest in the outdoors and horses, her health meant that she was not able towalk for best part of 30 years. Mary remained the same person on the insidebut the reality of her life was that she could not physically do what most of ustake for granted. She could not walk and she was in frequent almost constantpain. Mary also found it hard to sleep because of this and in my experiencemany men in Steve's position would have run a mile.I believe it is a credit to Steve that he remained a steadfast partner all thoseyears and doing everything that he could for Mary. He was truly devoted andcould not be described as anything less.[36] Ms Henderson also noted the effect that Steven's bicycle accident of January2016 had on Mary:I recall talking to Mary after Steve's bike accident. Steve was in a bad way inhospital and Mary was devastated. She was unable to drive herself to visithim and she was panicking and distraught at the thought of not being able tovisit him or see him. The thought of not seeing Steve daily and losing Stevewas certainly deeply upsetting to Mary.I understand from one conversation with Mary that there was a possibility thatSteve's rehabilitation was initially going to be in South Auckland and thisreally upset Mary because she wouldn't have been able to see him.As I understand, she didn't just want to see Steve, she needed to see and bewith Steve. I think it shocked her to think that anything could happen to Steveas she was the one in the partnership who had the health issues, not Steve. Inmy experience people don't have the same level of concern and upset thatMary expressed in regard to Steve for just mere friends.[37] At the end of her affidavit Ms Henderson commented:I always thought that Steve and Mary had what my husband Ian and I have,real love which includes in sickness and in health. I know that maybe theydidn't stay overnight at the same house but believe that would have beencaused by Mary's pain and I expect Steve would have done anything to pleaseher.[38] The final independent witness was Maurice Gray. Mr Gray had got to knowboth Steven and Mary while working at the East Coast Bays City Council. He laterworked with Steven in his engineering consultancy until he left to care for his ownwife, and was a pallbearer at Mary's funeral. After describing how Steven and Marygot together and the initial stages of their relationship he explained:In the mid 1990's Mary's health began to deteriorate. She had to give up herjob and she eventually became wheelchair bound. This did not prevent Steveand Mary's relationship continuing and Steve cared for her right up until herdeath at the beginning of this year. I think that he only went back to his houseto sleep. Steve also has his work office at this home. As far as I was awarethey both treated Mary's house as their home.I also know Steve's mother Dorothy Elspeth Moon ("Elspeth"). Elspeth isaged 90 years and has possible onset dementia. Elspeth lives next door toSteve. I know that Steve has been concerned for many years about her healthas she lives alone and Steve has needed to check on her for many years.I have visited Mary's house many times and on three occasions I assisted Steveto carry out extensive tree felling in Mary's garden. Mary directed us fromher wheelchair. Mary's house is a small house and in my opinion only suitablefor one person to live in.Mary was living in her house when she began her relationship with Steve. Asher health deteriorated and given that they had not been able to find a homethat met all of their joint needs, Mary's house had the benefit of being suitablefor her as it had ramps and enabled her to manoeuvre easily with her wheelchair. However, it is small and was built as a "granny flat" and not suitablefor two. It was Mary's house that was "home" for both Steve and Mary as thiswas where they spent most of their time.Mary and Steve were in relationship in every sense of the word. To me Steveappeared to spend the majority of his time at Mary's house and the fact theyslept in different houses did not mean I thought any differently of theirrelationship.I am aware that Steve visited Mary every day and cared for her up to andcontinues to even after her death. From my knowledge of their relationship,Mary was very reliant on Steve and the care, companionship and love that hegave to her and he relied on her love, care and companionship.In February 2016 Steve was in a cycling accident when he was returning toTorbay following visiting Mary. Steve owns a bike which he used to cycle tovisit Mary because they lived so close together. Following his accident Stevewas unable to drive due to suffering head injuries. Steve would normally driveMary to all of her hospital and health appointments.When Steve was in hospital he was unable to take Mary to her specialistappointments, so I assisted Mary on Steve's behalf during this time. Marywas very upset when Steve was injured and was not able to get herself to visithim.Mary was devastated as they had both thought that Mary would probably diefirst and at that time it seemed as if she might outlive Steve.I took Mary to visit Steve in hospital on several occasions. I remember on onetrip to the hospital Mary showing me a text she had received from Steve askingher to marry him. Mary asked me whether she thought he meant it given hewas suffering a head injury, but she was delighted to receive the message.When I took Mary to the hospital to visit Steve I would not stay with Mary inSteve's room because I wanted to give them both special time together. Iwould leave Mary sitting with Steve holding his hand and talking to him evenwhen he was in an induced coma and couldn't hear her.Steve has been a very loyal partner for twenty-seven years to Mary and caredfor her every need and put her wellbeing above his own. Mary was his lifeand I am shocked that Mary did not provide for him in her last Will,particularly as it was obvious that she loved him dearly. Steve was not just aplatonic friend, he was Mary's life partner.Steve has devoted his life to Mary. I have cared for and lost two wives thoughillnesses and know what this entails. As Mary was unable to leave the housefor long period of time due to her illness, Steve has not been able to travel,they weren't able to go out for dinners and other activities due to Mary's pain.In my opinion, Steve's devotion to Mary has meant that her care and welfarehas been the focus of his life for the past twenty-seven years. I don't believethat this ever-bothered Steve as they were in a relationship and you don't stayin a relationship for that long if you don't love that person.[39] Finally, in the course of cross examination both Patrick and Anthonyacknowledged the importance of the relationship to Mary as well as to Steven. Inparticular Patrick noted:A. My own view on my sister's social situation is that she was a highlyvulnerable person in terms of social contracts. This whole contest isabout a social contract that may or may not have existed. I don't thinkshe would easily run to, for example, contradicting Steve in public ifhe was there, if he said, "You and I are partners." If my sister's view,which it seems to be, is that she and Steve were friends, because that'show she has put it, not only in these legal documents but to othermembers of my family and to other people at times. She would notwant to alienate anybody who she did have a social contract of anysort with, she had very few of them, they had dropped off her evidence is that, where have all my friends gone?Q. But Mr Moon, he didn't drop off the horizon, did he?A. No, he didn't, no.Q. He was there in the background, whichever way like to call itMr Doyle, for 27 years, wasn't he?A. He was there in some form or another for that length of time. Whetherit was as much as he says, we might question. But he was, had anassociation with my sister for a very long period, no question.[40] In response to questions from the Court, Patrick went on to elaborate:A. Yes I, you know, apart from family and caregivers and Mary attachedsome significance to some of her caregivers because she felt she couldactually talk with them, some of the others she didn't because theywanted to tell her what to do, "You should be in a rest home," and allthat sort of thing. So she had a very, very small social contract. I meanI talk about social contracts a lot because it's partly my, has been myjob, not currently. So Mary would have been loathe to give up anysocial contact or contract she had. She didn't have many. She hadfamily, she had Steven. I'm not aware of anybody else. Jim, her elderfriend who died in, he died after my father died. I've met him though,as evidenced. He visited her but apart from those, I am not aware ofanybody else outside, as I say, of family and Steven, who would havevisited her on any regular basis, except when they were paid to do so.[41] For his part Anthony acknowledged the impact of Steven's bicycle accident onMary in early 2016 in the following terms:A. Well yes, in the knowledge that she had a limited time left to live,because at the time she was well aware, as with the rest of us, that shehad a terminal illness from which she would not recover. And thatSteven was then incapacitated meant that their ability to spend timetogether was going to be curtailed and it seemed that from the time of– now if I remember the sequence of events correctly, which is alwaysdifficult – Mary's terminal cancer diagnosis of June 2015 and Stephenhad his accident early 2016, over that time they, after previouslyseeming to have a more distant relationship, they seemed to be closerand this accident was certainly going to be a setback to any such plans.So yes, Mary was distressed.[42] Likewise Anthony explained his acknowledgement of Steven (see [19] above)in his eulogy to Mary by largely confirming his comments made in the eulogy:A. I was giving a eulogy at a funeral and Steven had arranged thefuneral. Mary didn't want a funeral. But he persuaded her that sheshould have one because it's partly for the people who are left behind.Steven had given her an enormous amount of support over manyyears. And so in that first paragraph I was not going to, in anyway, undermine, undercut or underplay Stephen's role in her life.That would have been very disrespectful. So when I said at the timethat he was never far from her thoughts, I – that's probably true – inevery single conversation I had with her? No, he wasn't mentioned inevery single conversation I had with her, there were lots of otherpeople she mentioned, including her old friend Jim, including Patrick,including our father and his wife, other relatives, other friends of hers.But she did talk a lot about Steven because they had a lot to dowith each other. So I think it's, in terms of what significance oneattaches to the introductory paragraph of this eulogy, I think it'sprobably worth keeping in mind that I was trying, in the mostpronounced way, to recognise Stephen's contribution.(Emphasis added)[43] Finally in response to a question about Steven and Mary's routine (see [14]above) Anthony commented:A. It is really hard to make a, an objective comment about it because mostof the time that I talked to Mary, well I visited her pretty regularly on,in the middle of the day on a Friday when I was over at North Shorein the morning. Of course that wasn't a time that by this routine Stevenwould have been there. Couple of times went over in the evening forvarious reasons, sometimes emergency reasons. It's so hard tocomment because I'm pretty sure from what Mary said, Steven didmake her dinner most nights and, as I said, gave her a great deal ofpractical help. He took her to all, pretty much probably, not quite all,there were a couple of other people who helped her with medicalappointments, but other than that he took her to appointments withoncologists and numerous other health care professionals, exceptduring the day when he was working. And thing is that in all the timesthat I visited Mary between when she bought the house in 1979 andwhen she passed away, I think I'd met Steven there once. So it wasundoubtedly a long relationship and, yes, the term "unconventional"is probably a good term. When I think about all the other, anybodyelse I can think of who are in a long term relationship, in visiting oneyou'd see evidence of the other. So it was just unusual. I would go andvisit her but, you know, I couldn't really strongly comment. [44] Taken together I am satisfied that despite the way in which Mary chose tocategorise her relationship with Steven and her consistent description of him as a"friend", Steven's own view of their relationship was correct; that is, they were in ade facto relationship. In particular I am satisfied that his description of the relationshipis confirmed and corroborated by:(a) its undisputed duration;(b) the maintenance of a sexual relationship until Mary was diagnosed withcancer;(c) the clear accounts given by Vicki Moon, Pamela Doyle, Maxine Blake,Ruth Henderson and Maurice Grey, none of whom werecross-examined; and(d) the considered and frank opinions provided by both Patrick andAnthony in evidence before me, with Anthony's explanation incross-examination largely reinforcing his contemporary description ofSteven as Mary's partner, offered in his eulogy at Mary's funeral.[45] There is no doubt that Mary's significant and ongoing medical issues from thetime that she and Steven first started going out substantially restricted her ability toparticipate in society generally. Not only did this prevent her undertaking activitieswith Steven throughout much of their relationship but it also, as Ms Henderson,Mr Gray and Patrick confirmed, led to the loss of Mary's normal social connections,making her relationship with Steven even more important. Likewise given Mary'songoing medical issues the familiarity of her own home was important for her tomaintain, but, given its acknowledged small size, Steven also needed to maintain hisown separate residence for both his residence and business. I therefore also concludethat in this situation the absence of shared assets was not material.[46] Ultimately the picture that emerges is of two quite private people who formeda relationship that worked for them despite very considerable difficulties arising fromMary's medical conditions. There can be no doubt whatsoever how important thisrelationship was, not just to Steven, but also to Mary. This is confirmed by her noteexpressing the symbolic importance of her bequest of her ashes (see [18] above), andwhen Steven suffered his bicycle accident in January 2016. This second event, asAnthony noted, resulted in a greater closeness of their relationship leading to thepurchase of a ring by Steven, which Mary wore until her death.[47] I accordingly conclude that when viewed objectively and in its totality thesubstance of Steven and Mary's relationship cannot be dismissed as merely a"friendship" or "companionship", but rather in legal terms it was indeed a de factorelationship for the purposes of the Relationship (Property) Act.[48] In light of this finding, Steven is entitled to bring the application under theFamily Protection Act 1955, and the focus now shifts to the merits of that application.Issue Two – Did Mary breach any moral duty to Steven?[49] In Mr Moss's submission no moral duty was owed by Mary to Steven for thefollowing reasons:(a) There is no evidence of any contribution by [Steven] which increasedthe value of the assets of the estate, the major property having beenall acquired before the relationship, and any increase in cash or shares(which is unclear from the evidence) was not obtained with anymeaningful contribution by [Steven];(b) [Steven] and Mary had an unconventional relationship whereeverything was separate. That goes for everything from their houses,to their chattels, to their interests. Why in death should there be anydifferent treatment;(c) There were no children of the relationship;(d) [Steven] was able to work throughout the relationship. We havelimited information about his earnings other than one poor year priorto Mary's death. He gave mixed evidence, of, on the one hand,working extremely hard and weekends (which is why he was neverthere when [Anthony] visited) but on the other, that he had to scaleback work to help look after Mary;(e) Close family members such as Mary's father John, Pam, Anthony,Patrick and Jessica and Marly all undertook significant roles in Mary'scare and wellbeing;(f) [Steven] is not necessitous.Discussion and Analysis – Issue Two[50] The authorities make clear that the term "moral duty" utilised by the judiciaryin family protection cases is simply a "shorthand expression "to" describe theobligation to make 'adequate provision for the proper maintenance of support' oflegatees".4[51] It follows that whether Mary breached "moral duty" to Steven will depend onwhether Steven can show Mary he failed to make adequate provision for his propermaintenance and support.5[52] The test to be applied is that set out in Williams v Aucutt:6The test is whether adequate provision has been made for the propermaintenance and support of the claimant. "Support" is an additional and widerterm than "maintenance". In using the composite expression, and requiring"proper" maintenance and support, the legislation recognises that a broaderapproach is required and the authorities referred to establish that moral andethical considerations are to be taken into account in determining the scope ofthe duty. "Support" is used in its wider dictionary sense of "sustaining,providing comfort". A child's path through life is supported not simply byfinancial provision to meet economic needs and contingencies but also byrecognition of belonging to the family and of having been an important partof the overall life of the deceased. Just what provision will constitute propersupport in this latter respect is a matter of judgment in all the circumstancesof the particular case.4 Henry v Henry [2007] NZCA 42, [2007] NZFLR 640 at [27].5 Williams v Aucutt (2000) 2 NZLR 479 (CA) at [68].6 At [52].[53] As Heath J subsequently explained in Re Williams:7As Richardson P said in Williams v Aucutt, the composite expression,"proper maintenance and support" (to be found in s4(1) of the 1955 Act)recognises the need for a broad approach, reflecting contemporaneous moraland ethical considerations. Emotional and psychological support will often beas important as material financial assistance: such is the nature of the sense ofbelonging to a family, which the concept of support seeks to capture.On the other hand, the Court must give proper weight and respect to thetestamentary wishes of the testator. As the Court of Appeal has emphasised, ifthe testator has failed to provide adequately for a qualified claimant, anyaward to remedy the breach of moral duty must be assessed by reference towhat is required to remedy the breach. It is also appropriate for the Court, incases where no, or a small, provision has been left for a particular qualifiedclaimant to award an amount to that claimant if a justifiable sense of exclusionfrom participation in the family estate results from the testamentarydisposition.[54] The authorities thus recognise two categories where "proper maintenance andsupport is required":(a) economic needs and contingencies; and(b) the need for recognition of belonging to the family or having been animportant part of the life of the deceased.[55] In this case, having received only Mary's ashes in her will, Steven argues bothfactors are present. It is clear that the primary weight of Steven's case has been on thesecond of these issues. In particular, the impact of finding that he had not beenprovided for in the will was a consistent theme of Steven's evidence. He explainedthat having read Mary's will he "was very upset and felt used". He went on to describe:After Mary died I read her Will, I was very upset and felt used andunappreciated. It was as if I was nobody in her life. I had spent nearly everyday with her for 27 years, except for 2 ½ weeks when I was in hospital andsome short trips to the South Island.[56] And further:I do feel that in death Mary should have put me first as I put her first in life. Ifeel betrayed by her. I struggle to understand why she treated me as she did.I know that she loved me, but her Will does not reflect that. I am now sixty-two years old and will not be able to work for too many more years. I have a7 Re Williams [2004] 2 NZLR 132 (HC) at [36] – [37].house but that will not pay my expenses as I grow older. Mary knew that Ihad little savings for the future.[57] The situation with regard to Steven's "economic needs and contingencies" isless clear. Steven has given evidence that his commitment to looking after Mary,particularly after her cancer diagnosis in 2015, resulted in his business suffering andeventually being wound up, and that while he now has a good job (earning a salary of$100,000): I only have another two years to earn this income before I reach the ageof sixty-five. I don't expect to continue to work at this level after that.[58] Despite these comments there is no real evidence before the Court of theimpact Steven's care for Mary had on his engineering consultancy over the years, orindeed what his income was throughout the period of his relationship with Mary.8 Onthe other hand there was considerable evidence that Steven had in fact worked hardthroughout the period and used the need to work at his business as a reason for notbeing able to attend Doyle family functions. There is likewise no reason given as towhy Steven will not be able to maintain employment at his current level beyond 65;Steven has no present health issues and he will also acquire a state pension at that time.[59] Despite this lack of detailed evidence it is nonetheless clear that going back tofirst principles, Steven is nearing the end of his working life, and while as Mr Mossnotes Steven does own his own house outright, that of itself in Auckland does not meanhe is not "necessitous" given he needs to live somewhere, and should he be requiredto sell the property he would have to acquire another in the same market. Outside ofthe house Steven otherwise has very limited savings, being limited to approximately$30,000 in Kiwisaver, and approximately $20,000 invested in shares.[60] Taking these various matters into account I am therefore satisfied that giventhe nature of Steven and Mary's relationship, Mary did fail to make adequate provisionfor Steven under both headings set out in [54] above. Accordingly, Mary was in breachof her moral duty to Steven. The question is: what is required to rectify that breach?8 Steven deposed that he had received an average of $43,000 per annum before tax but no documentswere provided to support this.Issue Three – What is required to rectify Mary's breach of moral duty?[61] As noted at the outset Steven has sought the whole of Mary's estate apart fromthe specific matters noted in the Schedule to this judgment.[62] Ms Callanan on behalf of Steven submitted that as the spouse of Mary, Stevenhad a "paramount claim", which in the absence of any other potential claimants underthe Act meant that Steven was entitled to the whole estate. Ms Callanan reliedparticularly on the decision of Re Toomey a decision of Judge P J Keane (as he thenwas) in the Family Court.9 In that case Judge Keane awarded the whole of a smallestate to the widow of the deceased. His Honour relied in particular on the decisionof the Court of Appeal in Re Kallil where the Court of Appeal said:10 the measure of a testator's obligation to his widow is (where there are noconflicting moral claims of other dependants), to make such provision as willenable her, taken in conjunction with her own means, to live with comfort andwithout pecuniary anxiety in such state of life as she was accustomed to in herhusband's lifetime or would have been accustomed to if her husband had thendone his duty to her Discussion and Analysis – Issue Three[63] Having considered Ms Callanan's submissions on this issue, I am satisfied thatthe suggestion that in the absence of other claimants to whom a testator or testatrixowes a moral duty a spouse is automatically entitled to take the whole estate does notreflect the settled law, and indeed is not what the Court of Appeal said in Kallil. Withrespect to Ms Callanan, Re Toomey cannot override that position and at most shouldbe considered as an application of settled principle to the particular facts of that case.The authorities are in fact clear that where a breach of moral duty has been establishedthen, as Mr Moss submitted, the position is as set out by the Court of Appeal in Henryv Henry:11[54] In both Williams v Aucutt and Auckland City Mission v Brown thefocus was on what was required to remedy the failure to make adequateprovision in the will. In both cases there was no real dispute in this Court thatsuch a failure had occurred. It is likely that the Court's remarks aboutconservatism were also focused on the extent to which the will should be9 Re Toomey (1995) 13 FRNZ 481 (DC).10 Re Kallil [1957] NZLR 31 (CA) at 37.11 Henry v Henry, above n 4, at [54] – [55].disturbed when a failure to make adequate provision is established. The law isclear on that: the award to the claimant should be no more than is necessary toremedy the failure. This Court's concern appeared to be that that approach wasnot being strictly followed. So, in that context, conservative means simply "nomore than the minimum necessary to make the adequate provision".[55] However, the call for conservatism is not limited to the question ofwhat should be done to remedy a failure to make adequate provision. It appliesalso to the assessment of the issue as to whether adequate provision has beenmade. Again a mere perception of unfairness is not a good enough reason todisturb the will: the Court must conclude that the claimant has established thathe or she has not received adequate provision for proper maintenance andsupport. That assessment must be made applying the test enunciated byRichardson P in Williams v Aucutt at para [52]. In making the assessment,however, the Judge must remind him or herself that there is no basis for theCourt to override the testamentary freedom of the testator or testatrix if thattest is not met, even if it appears to the Judge that a fairer distribution of theestate would have been desirable.[64] The conventional position is reflected in cases such as Wylie v Wylie where theCourt of Appeal noted:12The law entitles Mrs Wylie to generous recognition of her long and effectivecontribution to the marriage and to the creation of the family assets. But evenfor an exemplary wife such as Mrs Wylie it limits her claim to the extentof deficiency in terms of the statutory moral and ethical standardsconsidered by this Court in Williams v Aucutt of her need of proper"maintenance" and her entitlement to the support that includes duerecognition of her role in the family. The issue is whether that was not dulyprovided to her by the successive acts of recognition by Mr Wylie and thetrustees.While the law now treats exactly alike male and female claimants under theFamily Protection Act who are similarly placed, Williams v Aucutt confirmsthat the Court has no authority to rewrite a will to achieve parity. It mayintervene only if, and to the extent, there is breach of the moral and ethicalduty that a just and wise testator can be held to owe them in all thecircumstances of the case.[65] The position is clear that notwithstanding Mary's breach of moral duty, Stevenhas no automatic right to Mary's entire estate, but rather only to what is required tofulfil the testator's moral duty.13 The question therefore turns to what provision isnecessary to Steven to rectify the breach identified.12 Wylie v Wylie (2003) 23 FRNZ 156 (CA) at [22], [36] per Baragwanath J, (emphasis added).13 At [27].[66] As previously indicated I accept that an award is necessary for both emotionalsupport and recognition of Steven and Mary's relationship, and taking into accountSteven's financial position. On the other hand Mary was otherwise entitled to disposeof her estate as she wanted. It is clear from the evidence that Patrick and indeed theother members of the Doyle family had a good relationship with Mary and supportedher as much as they were able, and there is no need for Patrick to have to justify Mary'sbequest to him. I also take into account the fact that both Mary and Steven wereessentially financially independent throughout their lives together, and that Steven toohad exercised his choice not to leave all his own estate to Mary, had he died before shedid. Balancing these matters, and the comments on Steven's financial needs set out at[59] above, as well as Mary's clearly expressed wishes as to how her estate should bedistributed, I conclude that Steven is entitled to receive a payment of $300,000, to bepaid out of Mary's estate.[67] Finally, although agreement was able to be reached in relation to the specificbequests set out in the Schedule, no agreement was reached with regard to theremaining household goods and personal effects left to Patrick and Anthony pursuantto Clause 4.7 of Mary's will, apart from the ring purchased by Steven for Mary, whichit was agreed is to be provided to Steven. Steven has indicated that he wishes toreceive a number of items, currently held in storage by the Public Trust, together witha jewellery box currently in Steven's possession. In contrast Mr Moss has submittedthat those items should all be distributed in accordance with Clause 4.7.[68] On this issue I would like to invite the parties to further consider theirrespective positions, based on my findings in this judgment, and in particular myconclusion that Steven was Mary's de facto partner and that he was entitled to berecognised as belonging to the family and having been an important part of Mary'slife. Given this position, recognition through the provision of Mary's personal effectsas sought by Steven would appear to be appropriate unless there are good reasons asto why it is inappropriate for particular chattels to be transferred. In the event that noagreement is however possible, I will determine the issue after giving both parties theopportunity to file further submissions.Decision[69] I accordingly make the following orders:(a) A payment of $300,000 to Steven to be paid out of the estate afterpayment/transfer of the items set out in the Schedule to this judgment.As this payment to Steven will almost certainly require the sale of theFairview Avenue, leave is reserved for the parties and in particular thePublic Trust to return to Court to obtain such further orders as may benecessary to give effect to this judgment.(b) For the reasons that will be apparent from this judgment I consider thatboth Steven and Patrick took principled approaches to the litigation andboth have succeeded to an extent; Steven in that he was in a de factorelationship with Mary and entitled to a share of her estate, and Patrickhas been successful in resisting Steven's claim to the whole estate. Inthe circumstances I consider it appropriate for the costs of all parties tobe met out of the estate. In the event that any issue arises with thecalculation of costs, leave is reserved for the parties to return to theCourt for determination of the issue following the submitting ofmemoranda.(c) Steven, Patrick and Anthony will have until 22 June 2018 to see ifagreement can be reached on those items sought by Steven that comewithin cl 4.7 of Mary's will. If agreement is reached counsel are toconfirm the position by way of joint memorandum. In the event thatno agreement is reached any further submissions and/or evidence onthe issue are to be filed by 29 June 2018, following which I willdetermine the issue on the papers._______________________________Powell JScheduleSpecific Bequests in Mary Doyle's will not challenged by the present proceedings:(a) Clause 4.2, the shares and rights to shares in GuocoLeisure Limitedto Marly Ysa-Doyle Doyle;(b) Clause 4.3, the shares and rights to shares in Contact Energy toJessica Reagan Doyle;(c) Clause 4.4, French painting to Patrick David Doyle;(d) Clause 4.5, her carriage clock and Aunt Norah rug to AnthonyJames Doyle; and(e) Clause 4.6, her writing desk (excluding contents) to ChristopherChitty if he survived her.