By Hannah Bartlett, Open Justice Reporter of 
Photo: 123rf
A woman tried to claim a double share of her father's estate because she thought she had done more to care for her parents than her eight siblings.
Her father's will said his assets should be divided equally among the nine siblings, but the woman claimed he had failed in his "moral duty" when he didn't apportion her more than the others.
So, she took her argument to the courts where she challenged both his will and a family trust that owns commercial property, arguing she deserved larger shares of both.
However, a Family Court judge found the care arrangements she pointed to had been partly her creation, as she had sought to control her siblings' access to their parents.
Judge Stephen Coyle said the Bay of Plenty woman, whose name is redacted and replaced with "Beth" in the judgment, provided "significant support" to her parents in their later years.
She took them to medical and legal appointments, helped with groceries, laundry, and property management, did cleaning and cooking, and bought appliances for them.
But she also restricted the contact other family members could have with her parents and sowed division between her father and her siblings after their mother's passing.
"It would be unjust for the Court to allow [Beth] to now rely upon a situation which she has singlehandedly created as a justification for her receiving a greater share of her father's estate," Judge Coyle said.
The judge said it was a "tragedy" Beth had downplayed and "failed to recognise the contributions made by her siblings".
He said Beth's older siblings spoke of working, even in childhood, to help build up the family business and commercial asset base.
"These are siblings who, throughout their parents' lives, have made different, distinct, and significant contributions to their parents' lives and financial circumstances."
Beth tried to claim her contribution was "more important and more valuable", but the judge did not agree.
She filed affidavits that were "unnecessarily inflammatory" and they had "served to cause what may be irrevocable rifts" within the family. She also seemed to have "no insight" into the "hurt and harm" she had caused through the unhelpful content.
A tale of two childhoods
The judge noted a large age gap between Beth and her eldest sibling, and that the circumstances of her childhood had been different.
"While [Beth]'s lived experience may have been one in which there was not as much or little violence between her parents, I accept that the experience of the older siblings was one in which they observed their mother being a victim of their father's violence," the judge said.
One of the siblings spoke of being put to work when he was 7, working on Saturdays and Sundays to help his parents.
"On reflection, I really didn't have much of a childhood, because from a young age [Nick] and I were made to work.
"We would leave home at 6 o'clock in the morning and return home at around 8 or 9 o'clock at night. This went on for a number of years as we created the assets that formed the foundation of mum and dad's wealth."
Another said they had "slogged their guts out" and made a "significant" sacrifice to work in their parents' business, which directly flowed into the building of an asset base that was "later traded for other buildings and assets that [Beth] then had involvement with".
The older siblings also had significant family responsibilities: "Throughout our childhood, each of the older children were put into bedrooms with the babies to care for them, change their nappies during the night, and do chores."
In the face of these claims, Beth had denied or minimised the work done, the judgment said.
"In doing so she invalidates and diminishes their experiences as children of [their parents]. She belittles her siblings' lived experiences of their parents, and in particular their experiences of [their dad] as a difficult and, at times, a violent man."
Things came to a head after their mother's death.
"We were unable to get together as a family to plan mum's funeral and give her the send-off she deserved. We did organise a family get-together before mum's funeral but [Beth] and [Hannah] chose not to attend and instead sent text messages telling us what was going to happen ... the rest of the family felt like guests at our own mother's funeral."
Another sibling said, "[Beth]'s controlling behaviour and management of our parents' affairs meant any assistance offered by available siblings was declined. Instead, we helped out in other ways by sending pre-cooked meals, and baking etc."
Despite the limits on the contact between the siblings and their parents, one of the sons, who lived in Tauranga, said he would take his mother shopping, and visit his parents daily.
The leaky home
Five years after buying a property in the Bay of Plenty, Beth's parents discovered it was leaky.
Beth managed the weather tightness claim for her parents who were awarded a large sum of money that covered repairs.
While Judge Coyle said there was no doubt that Beth helped her parents extensively in this, the siblings said she never asked for their input.
One sibling said she and her husband had experience with leaky build repairs but Beth never asked for their advice.
The siblings felt she should have got someone "suitably qualified" to do the work, given their parents had the finances to do so.
The claim
The overall dispute encompassed two things - the father's nearly $2 million estate and the family trust.
The trust issue will be determined separately in the High Court but the father's will was dealt with by Judge Coyle in the Family Court.
In the will, the $1,949,352.67 was to be divided equally between the nine siblings.
However, Beth sought more than that, claiming her father had "breached his moral duty" and should have recognised the care she gave him and the work she did on the leaky home.
Instead of one-ninth, she wanted two-tenths.
If divided equally between the nine siblings, each would receive $216,583.55. If Beth had been successful they would have received about $20,000 less than under the terms of the will. Beth, however, would have received about $173,275.74 more.
One sibling supported her proposal, but the remainder did not.
What is a "moral duty"?
To be successful in her claim, Beth had to prove her father was in breach of his "moral duty" to her - which means he failed to "make adequate provision for [Beth]'s proper maintenance and support".
The judgment noted it is not sufficient to merely show "unfairness" - it must be shown in a broad sense that the applicant has need of maintenance and support.
It went on to say "mere disparity in the treatment of beneficiaries not sufficient to establish a claim ... The court's power does not extend to rewriting a will because of a perception it is unfair."
The outcome
The judge decided that when Beth's father signed the will he would have been well aware of her contributions.
"That was the opportunity for [him] to recognise, if he had felt the contributions were exceptional, or otherwise justified some recognition for [him] to have provided for [Beth] over and above that which the other siblings were to receive, in recognition of her duty and care. He did not do so."
The judge said Beth had failed to establish her father breached his moral duty.
He said even if he was wrong in that determination, he would have concluded that if a moral duty had been established, it had already been met through the current provisions of his will, and through the dispositions that she is to receive as a beneficiary of the family trust.
Even without the claim, Beth would receive $720,000 from both the will and the family trust, which the judge said was "a significant and sufficient amount to recognise any moral duty that is owed to [Beth]".
Because Beth was unsuccessful, an order was made for Beth to pay costs of $40,611.37, and disbursements in the sum of $1017.35, towards her siblings' legal fees, and this would come out of her share of the estate.
- This story originally appeared in the New Zealand Herald.
