Supreme Court denies leave to appeal in estate case alleging unfulfilled promise

• The mother received a life interest in his half-share of the farm 
• That half-share would pass to the brother upon her death, as long as he paid his two sisters half of one-sixth of the estate value as of his father’s death 
• The two sisters would receive comparatively less 

In 2021, the family trust made a capital distribution of $520,000 each to the two sisters.

The mother sold her half-share in the farm to the brother’s family trust for $4.544m, plus goods and services tax, with most of the purchase price forgiven as a gift. 

In August 2022, the applicant commenced proceedings against the executor of her father’s estate under the Family Protection Act 1955 (FPA). She alleged that: 

• Her father promised that her mother would “level things up” among the three siblings 
• She realised that the promise had fallen through when she learned in 2021 about her mother’s sale of her half-share in the farm 

The High Court denied a request for an extension of time under s 9 of the FPA, upon considering the approximate 45‑year delay inexcusable. The Court of Appeal then rejected the applicant’s appeal. 

The courts below acknowledged that the father arguably breached a moral duty. However, they pointed out that the applicant took a long time to initiate the proceedings despite knowing or unreasonably overlooking that: 

• Her father’s will set aside very little for her 
• Her mother might not fulfill the father’s alleged promise and might dispose of her half-share of the farm 

The courts below noted that the applicant – who apparently took more of an issue with her mother’s conduct and estate than her father’s – unsoundly assumed that her mother would “level up” her father’s distributions. 

The applicant applied for leave to appeal before the Supreme Court. In her proposed appeal, the applicant asserted that she had a strong case for a breach of moral duty. 

Leave refused

The Supreme Court of New Zealand dismissed the application for leave to appeal. The Supreme Court ordered the applicant to pay the respondents – except the executor, who abided – a single set of costs of $2,500.

The Supreme Court saw: 

• no question of general or public importance warranting this appeal, which essentially sought to assail factual findings 
• no apparent miscarriage of justice 
• no error in the lower courts’ conclusions and concurrent findings of inexcusable delay 
• no need to hear or determine the proposed appeal in the interests of justice