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Moon v Public Trust [2018] NZHC 1169 (23 May 2018)

Last Updated: 5 June 2018

JUDGMENT OF POWELL J

This judgment was delivered by me on 23 May 2018 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Lewis Callanan, Auckland Public Trust, Auckland

Cashmere Law, Christchurch

Counsel: J Moss, Christchurch

MOON v PUBLIC TRUST & ANOR [2018] NZHC 1169 [23 May 2018]

[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 Mary bequeathed only her ashes to Steven. As a result Steven has sought “proper maintenance and support” from Mary’s estate. Specifically Steven has claimed the whole of Mary’s estate, apart from the specific items listed in the Schedule to this judgment, including the estate’s principal asset, Mary’s home in Fairview Avenue, near Albany, 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 (“the Act”). 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, whether testate or intestate, and in terms of his or her will or as a result of his or her intestacy adequate provision is not available from his or her estate for the proper maintenance and support of the persons by whom or on whose behalf application may be made under this Act, the Court may, at its discretion on application so made, order that any provision the Court thinks fit be made out of the deceased's estate for all or any of those persons.

[4] It is common ground that Steven is only eligible to apply under the Act if he was:

A de facto partner who was living in a de facto relationship with [Mary] at the date of ... her death.¹

[5] Steven’s claim is opposed by Patrick. While Patrick acknowledges the longstanding relationship between Steven and Mary he:

(a) questions whether Mary would have regarded her relationship with Steven as being in the nature of a de facto relationship for the purposes of the Act; and

¹ Family Protection Act 1955, s 3(1)(aa).

(b) argues there is otherwise no failure to make adequate provision for Steven given his own financial position.

[6] The first issue to be determined by the Court in this proceeding is therefore whether Steven and Mary’s relationship was a de facto relationship. Only if it was is the Court required to go on to consider:

(a) whether in terms of s 4(1) of the Act Mary failed to make adequate provision 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” have the meaning as set out in s 2 of the Property (Relationships) Act 1976. This section in turn 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 2D provides:

2D Meaning of de facto relationship

(1) For the purposes of this Act, a de facto relationship is a relationship between 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 the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case:

(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 any arrangements 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 regarded as necessary; and

(b) a Court is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the Court in 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:²

Factors that may be taken into account in determining whether a de facto relationship exists for the purpose of the Act include the matters contained in s 2D(2). Cases decided before enactment of the legislation may provide some assistance but care must be taken because they often were concerned with the question of whether the parties were living together in a relationship “in the nature of marriage” for the purpose of Social Welfare legislation; Thompson v DSW [1994] 2 NZLR 369; (1993) 11 FRNZ 402; Ruka v DSW [1997] 1 NZLR
154; (1996) 14 FRNZ 622 (CA); or were cases where cases where unmarried couples’ property rights were determined pursuant to constructive or express trust principles culminating in the factors discussed in Gillies v Keogh [1989] NZCA 168; [1989] 2 NZLR 327; (1989) 5 FRNZ 490 (CA); and Lankow v Rose [1995] 1 NZLR

277; (1994) 12 FRNZ 682 (CA). In Thompson v DSW Tipping J provided a checklist containing a number of matters to be considered when considering whether parties lived in a relationship in the nature of marriage. He emphasised, however, that whether or not the questions were answered positively did not necessarily mean that the relationship existed, or was excluded. The outcome depended upon the weight and effect of all the answers to particular questions or considerations so as to assess the overall picture, with the ultimate decision always being one of fact and degree. Those comments remain appropriate and indeed are embodied in the legislation. The incidents and attributes of marriage, or for that matter de facto

² Scragg v Scott (2006) 25 FRNZ 942 (HC) at [25] (emphasis added).

relationships, are not the same for all people and the ultimate question is to be answered in a broad practical way weighing up all the circumstances.

[9] The Court went on to note:³

There will be cases which are finely balanced where it will not be easy to say whether a particular relationship moves across the line into a de facto relationship. Usually they will be cases where the parties are in a context because of the Property (Relationships) Act 1976, and one claims that the relationship 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] up as best he or she can all of the factors – not only those contained in s 2D, but also any others there may be – and applying a common sense objective [judgement] to the particular case. Counsel has helpfully provided to us in Appendix form a summary of a large number of cases in the benefit fraud context pursuant to the Social Security Act 1964, the constructive trust cases and a number of cases decided in the Family Court in respect of the Property (Relationships) Act 1976. They are all factual findings based upon the evidence in individual cases but can only be viewed as examples. Generalisations are to be avoided because every case is fact specific. For example, it might be thought that if a man and woman do not live together, or have 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 factual situation 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 the parties regarded themselves as a close and devoted couple who had committed themselves to each other and accumulated joint assets and were:

a partnership between a man and a woman, who professed love for each other and were prepared to commit to each other their emotional and financial resources.

Although it was said that that was “not a de facto union” were have no doubt that it would have qualified as a “de facto relationship” under the present legislation 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 been physically living together. Instead cohabitation is simply one factor to be considered and 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 working at East Coast Bays City Council in the late 1970s. It was not however until early 1989 when Steven was 33 and Mary 36 that they started dating, and by that time both were already living in their own homes; Steven in a property next to his mother’s in Torbay from which he eventually operated his engineering contracting business, and Mary in her Fairview Avenue home, with Mary having already paid off her mortgage.

[12] Even at the outset of their relationship Mary was suffering from a significant medical condition, which although never formally diagnosed appears to have been some type of chronic fatigue syndrome. Mary had previously been very active, enjoying outdoor activities and horse riding in particular, but by the time Steven and Mary first started going out Mary was already suffering pain in her right knee which was making walking difficult, and she was on sick leave from her job as a meter reader for the power board. The pain progressively spread to Mary’s other knee, and then to her back, arm muscles, joints, and to the muscles in her throat, which ultimately made it difficult for Mary to talk. Within 18 months of the relationship commencing Mary was effectively restricted to a wheelchair and also suffering very badly from fatigue which 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 Steven and Mary were able to do as a couple, as Mary’s ability to get out and do things or socialise became increasingly difficult.

[13] Mary’s medical condition also appears to have played a significant role in the fact that Steven and Mary never physically lived together. While there is some evidence that Steven and Mary did look for a joint property together in the 1990s, this was ultimately not pursued as both found their respective properties suited their different needs, and Steven and Mary continued to spend the nights at their respective houses.

[14] The routine that Steven and Mary established over time was described by Steven in his evidence in the following terms:
I regularly start work at 7.30 am and Mary would not get up until around 9.00 am. Mary would text me during the day.

I would often text Mary from work around 4-5pm to ask what she felt like for dinner. I would usually go back to my house and clean up after work, because there 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’s house had only a small water tank and that I would bring around containers of water for drinking and cooking.

It is difficult for me to remember the early days of our relationship since it was over twenty-seven years ago.

I would then get takeaways and/or any ingredients for our dinner at the supermarket. At the same time, I would also pick up any medication Mary needed from the chemist.

When I got to Fairview Avenue, I would check the mail before going inside to see Mary. We would discuss our day and then I would usually put the dishes away from the day before, feed the cat and cook dinner if we weren’t having takeaways.

I would normally serve Mary dinner in bed and I would sit beside her to have dinner. We did have dinner a few times around the table. Mary’s kitchen was too small for two people to cook together and once I took over the cooking Mary 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 tv and generally spend time together until Mary became too tired and would need to go to sleep. I would say this was usually around 9.30 pm. I would make a thermos of tea for Mary to have in the morning and I would leave this thermos by her beside at night.

I would do the dishes from dinner, tidy the kitchen up a bit and do the chores you would normally expect after dinner. Mary insisted that the dishes were left 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 were too big.

I helped Mary get changed for bed and would kiss her goodnight before going to my house.

I would say that our above routine ... started once Mary became wheelchair bound, which was in the first year to eighteen months of our relationship. This routine just became a normal pattern for us.

I would lift Mary in and out of chairs and cars, be we had Fairview Avenue set up so that she could get around as much as possible without needing lifting.

[15] Despite the limitations of the relationship, Steven’s unchallenged evidence was that he and Mary had a normal sexual relationship up until the time Mary was diagnosed with terminal cancer in 2015.

[16] After Mary’s diagnosis Steven continued to provide support including taking Mary to specialist and other medical appointments as necessary. Steven was already Mary’s attorney under an Enduring Power of Attorney – Personal Care and Welfare and eventually Mary gave Steven authority to discuss her medical condition with her treating specialists.

[17] In 2016 Steven was himself badly injured in a bicycle accident in which he suffered significant injuries and was required to be kept in an induced coma for a period. 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 recovering from 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 January 2017.

[18] Sometime before she died Mary wrote the following note to Steven, which he received 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). I don’t want it scattered anywhere. Please keep – hide it away in a cupboard or whatever. At least it cant talk!

Always loved you and didn’t want to leave

Mary

P.S Thank you for being there for me for all these years. And putting up with me. Look after Jesspurr.

[19] After Mary died, Steven’s role in the relationship was acknowledged in both Mary’s death notice, which recorded that Mary was “partner of Steve”, as well as by Mary’s younger brother, Anthony Doyle (“Anthony”), who at the beginning of his eulogy at Mary’s funeral stated:

... I’d like to thank you all for coming here today to honour Mary’s memory and taking the time to do that and also for having taken the time to support her both in her final illness and through some fairly rough years at times before that. Ah, before going any further, while I’ve still go a voice, I just wanna thank 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 from
her thoughts in every single conversation I had with her. She talked about Steve, 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’s relationship 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 partner to my sister for all that, most of that time. The question is whether Mary considered it the same thing and there’s considerable evidence, as far as I can see, that she didn’t. And that’s basically, for me that’s the nub of the contest I suppose. And if my sister had, for example, said, “Steve’s my partner,” if she’d named him as partner in her will, I wouldn’t be sitting here now I don’t believe.

[21] Patrick, and other members of the Doyle family including Anthony, as well as Patrick’s two daughters, his ex-wife and current partner all commented that they had never seen Steven at Doyle family events, with the exception of Anthony’s wedding in 1990 and the funeral of Mary’s father John Patrick Doyle in 2016. In addition Patrick’s daughter Jessica, who had understood from John Patrick Doyle that Steven was Mary’s partner recalled Mary denying that Steven was her boyfriend instead categorising 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 official documents including Enduring Power of Attorney – Personal Care and Welfare, hospital/medical forms relating to her ongoing cancer treatment, and in questionnaires and other documents prepared by the Public Trust with regard to the preparation and execution of her final will. Mary in fact always described herself as single rather than “living as a de facto partner” and when asked by the Public Trust if Steven was her partner at the time she made her will in September 2015 “she said he was companion only”; and

(b) while Steven was upset that Mary had “not put him first in death as he had put her first in life”, Steven had also not provided for Mary in his

own will. Instead up until September 2016 Mary was, together with Steven’s mother, a discretionary beneficiary in Steven’s family trust when the trust deed was amended so that only Mary’s medical treatment could be paid for by the Trust.

[23] As a result, in his submissions on behalf of Patrick, Mr Moss submitted that while the evidence established “a long and close relationship, the evidence supports a finding that it was one of friend not husband. In short Mary and Steven did not have a close loving relationship in the nature of a couple living together as is required by s 2D”.

[24] In Mr Moss’s submission the relationship failed to meet the s 2D criteria in the following respects:

(a) There was no common residence because [Steven] did not live at Mary’s. He may have visited most days but he did not “live” there in the sense that his things were kept there and there were mutual household 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 put forward by Steven is very weak even in respect of buying a small amount 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 as Mary set out her status as single on every significant legal form in evidence;

(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 Steven and Mary was quite different from many other relationships. As it was frequently described 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 have viewed her relationship with Steven.

[27] As Mr Moss has pointed out, a number of the s 2D criteria are absent or present only in a limited way, but as Mr Moss conceded in his oral submissions before me, the issue is finely balanced.

[28] In particular, and notwithstanding the matters identified by Mr Moss, there are in fact a wide range of matters that support the existence of a de facto relationship for the purposes of the Property (Relationships) Act. First and foremost is the acknowledged 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 a mutual commitment to a shared life (s 2D(2)(f)). Likewise, as noted above, the existence of a normal sexual relationship up until Mary was diagnosed with cancer is not disputed (s 2D(2)(c)).

[29] The biggest area of contention really surrounds the reputation and public aspects of the relationship (section 2D(2)(i)). As noted, Mr Moss has submitted that this was “limited” and there is little doubt that Steven appears to have largely avoided participation in wider Doyle family functions, although the evidence from John Patrick Doyle’s widow, Pamela Doyle, is that Steven had a good relationship with Mary’s father John Patrick Doyle to the point Steven cooked them Christmas dinner “a couple of times”, and as noted at [21] above, Jessica Doyle understood from John Patrick Doyle 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 do anything for her, which was a great deal. In my opinion Mary reciprocated these feelings to Steve and I never had any reason to believe otherwise.

[30] Pamela Doyle’s impression was supported by the evidence presented on behalf of 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 up until her death in January 2017. Vicki Moon described in particular how after Steven’s

bike accident in January 2016 she was visiting him with her brother Douglas Moon and his wife Toni where they met Mary and Anthony at the hospital. In Ms Moon’s words:

We all introduced ourselves to the doctor and outlined how we were related to Steven. At this time, Douglas pointed out to the doctors that Mary was Steven’s partner. Mary acknowledged this and agreed with Douglas’ comment. From that point on the doctor primarily addressed his comments to Mary. Throughout the briefing we all recognised Mary as being the next- of-kin and deferred to her wishes regarding channels for communication as we went forward.

[32] Not only does the incident recounted by Ms Moon confirm how the relationship was understood by the Moon family, but the accuracy of Ms Moon’s account was largely confirmed by Anthony. While Anthony did indicate some unexplained reluctance on Mary’s part to be identified as Steven’s partner, he confirmed that she did in fact do so.

[33] The perception that Steven and Mary were partners in a de facto sense was not limited to the Moon family however, as three other friends of both Mary and Steven independently confirmed their respective understandings that Steven and Mary were in a long term de facto relationship. First, Maxine Blake, a childhood friend who grew up 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, it would always be during work hours, so Steve would be at work because he ran his own business. Mary would say things to me like “Steve will be home soon” which to me meant that her place was their home and it never crossed my mind that they were not partners. The way Mary spoke to me about Steve was 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 far away. I got the impression that in the early years of their relationship, they had wanted to find a place together in the country. This did not surprise me as Mary loved horses and would have given anything to have horses around her at her own property. However, unfortunately it was clear that due to her poor health and mobility issues, living in the country was not an option for Mary and Steve.

I asked Mary why they did not move in together and Mary told me that Steve would have, but that Steve’s elderly mother lived next door to him and heavily relied on him in the later years. I also got the impression that after so many years 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 the need 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 Mary as a single woman. I never thought that Steve was just a platonic friend. I was not living with Mary, but I always understood that they had a romantic and 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 she brought Steve with her. It was clear at that time that Mary and Steve were more 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 no question in my mind that Steve was not just a platonic friend, but that he was her partner. Annexed [to my affidavit] is a copy of Mary and Steve’s guest book entry from their stay.

My husband Ian and I have moved several times since then and we now live on 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 evidenced by the fact her email was ihatecomputers798@gmail.com.

I would have made the effort to catch up in person with Mary more often over the years if I had thought that she was alone and needed my help. However, I knew that she had Steve, so she had a partner and she was in a loving relationship. Therefore Mary was not someone who was alone and needed company.

Whenever I spoke to Mary, the conversations we had always included Steve and what he was doing. Mary and I both shared [a] love of gardening and she would tell me how she and Steve were planning to go to the garden centre or some such practical thing. They didn’t tend to go out to socialise. Steve was always mentioned in our conversations and they shared their lives even if they slept in different houses. The fact they lived in separate houses never meant I saw them any differently as a couple. I believe Steve was to Mary what my husband 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 the relationship:

I feel I must emphasise how much Mary’s health effected the lives of both Steve and Mary. Whereas Mary had been an outgoing lively woman with an interest in the outdoors and horses, her health meant that she was not able to walk for best part of 30 years. Mary remained the same person on the inside but the reality of her life was that she could not physically do what most of us take for granted. She could not walk and she was in frequent almost constant pain. Mary also found it hard to sleep because of this and in my experience many 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 those years and doing everything that he could for Mary. He was truly devoted and could not be described as anything less.

[36] Ms Henderson also noted the effect that Steven’s bicycle accident of January 2016 had on Mary:

I recall talking to Mary after Steve’s bike accident. Steve was in a bad way in hospital and Mary was devastated. She was unable to drive herself to visit him and she was panicking and distraught at the thought of not being able to visit him or see him. The thought of not seeing Steve daily and losing Steve was certainly deeply upsetting to Mary.

I understand from one conversation with Mary that there was a possibility that Steve’s rehabilitation was initially going to be in South Auckland and this really 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 be with Steve. I think it shocked her to think that anything could happen to Steve as she was the one in the partnership who had the health issues, not Steve. In my experience people don’t have the same level of concern and upset that Mary 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 they didn’t stay overnight at the same house but believe that would have been caused by Mary’s pain and I expect Steve would have done anything to please her.

[38] The final independent witness was Maurice Gray. Mr Gray had got to know both Steven and Mary while working at the East Coast Bays City Council. He later worked with Steven in his engineering consultancy until he left to care for his own wife, and was a pallbearer at Mary’s funeral. After describing how Steven and Mary got 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 her job and she eventually became wheelchair bound. This did not prevent Steve and Mary’s relationship continuing and Steve cared for her right up until her death at the beginning of this year. I think that he only went back to his house to sleep. Steve also has his work office at this home. As far as I was aware they both treated Mary’s house as their home.

I also know Steve’s mother Dorothy Elspeth Moon (“Elspeth”). Elspeth is aged 90 years and has possible onset dementia. Elspeth lives next door to Steve. I know that Steve has been concerned for many years about her health as 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 Steve to carry out extensive tree felling in Mary’s garden. Mary directed us from her wheelchair. Mary’s house is a small house and in my opinion only suitable for one person to live in.
Mary was living in her house when she began her relationship with Steve. As her health deteriorated and given that they had not been able to find a home that met all of their joint needs, Mary’s house had the benefit of being suitable for her as it had ramps and enabled her to manoeuvre easily with her wheel chair. However, it is small and was built as a “granny flat” and not suitable for two. It was Mary’s house that was “home” for both Steve and Mary as this was where they spent most of their time.

Mary and Steve were in relationship in every sense of the word. To me Steve appeared to spend the majority of his time at Mary’s house and the fact they slept in different houses did not mean I thought any differently of their relationship.

I am aware that Steve visited Mary every day and cared for her up to and continues to even after her death. From my knowledge of their relationship, Mary was very reliant on Steve and the care, companionship and love that he gave to her and he relied on her love, care and companionship.

In February 2016 Steve was in a cycling accident when he was returning to Torbay following visiting Mary. Steve owns a bike which he used to cycle to visit Mary because they lived so close together. Following his accident Steve was unable to drive due to suffering head injuries. Steve would normally drive Mary to all of her hospital and health appointments.

When Steve was in hospital he was unable to take Mary to her specialist appointments, so I assisted Mary on Steve’s behalf during this time. Mary was very upset when Steve was injured and was not able to get herself to visit him.

Mary was devastated as they had both thought that Mary would probably die first 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 one trip to the hospital Mary showing me a text she had received from Steve asking her to marry him. Mary asked me whether she thought he meant it given he was 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 in Steve’s room because I wanted to give them both special time together. I would leave Mary sitting with Steve holding his hand and talking to him even when 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 cared for her every need and put her wellbeing above his own. Mary was his life and 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 a platonic friend, he was Mary’s life partner.

Steve has devoted his life to Mary. I have cared for and lost two wives though illnesses and know what this entails. As Mary was unable to leave the house for 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 welfare has been the focus of his life for the past twenty-seven years. I don’t believe
that this ever-bothered Steve as they were in a relationship and you don’t stay in a relationship for that long if you don’t love that person.

[39] Finally, in the course of cross examination both Patrick and Anthony acknowledged the importance of the relationship to Mary as well as to Steven. In particular Patrick noted:

A. ... My own view on my sister’s social situation is that she was a highly vulnerable person in terms of social contracts. This whole contest is about a social contract that may or may not have existed. I don’t think she would easily run to, for example, contradicting Steve in public if he 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’s how she has put it, not only in these legal documents but to other members of my family and to other people at times. She would not want to alienate anybody who she did have a social contract of any sort 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 it Mr Doyle, for 27 years, wasn’t he?

A. He was there in some form or another for that length of time. Whether it was as much as he says, we might question. But he was, had an association 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 attached some significance to some of her caregivers because she felt she could actually talk with them, some of the others she didn’t because they wanted to tell her what to do, “You should be in a rest home,” and all that sort of thing. So she had a very, very small social contract. I mean I talk about social contracts a lot because it’s partly my, has been my job, not currently. So Mary would have been loathe to give up any social contact or contract she had. She didn’t have many. She had family, she had Steven. I’m not aware of anybody else. Jim, her elder friend 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 of anybody else outside, as I say, of family and Steven, who would have visited 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 on Mary 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 she had a terminal illness from which she would not recover. And that Steven was then incapacitated meant that their ability to spend time together was going to be curtailed and it seemed that from the time of
– now if I remember the sequence of events correctly, which is always difficult – Mary’s terminal cancer diagnosis of June 2015 and Stephen had his accident early 2016, over that time they, after previously seeming to have a more distant relationship, they seemed to be closer and 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 the funeral. Mary didn’t want a funeral. But he persuaded her that she should have one because it’s partly for the people who are left behind. Steven had given her an enormous amount of support over many years. And so in that first paragraph I was not going to, in any way, undermine, undercut or underplay Stephen’s role in her life. That would have been very disrespectful. So when I said at the time that he was never far from her thoughts, I – that’s probably true – in every single conversation I had with her? No, he wasn’t mentioned in every single conversation I had with her, there were lots of other people 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 do with each other. So I think it’s, in terms of what significance one attaches to the introductory paragraph of this eulogy, I think it’s probably worth keeping in mind that I was trying, in the most pronounced 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 most of 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 Shore in the morning. Of course that wasn’t a time that by this routine Steven would have been there. Couple of times went over in the evening for various reasons, sometimes emergency reasons. It’s so hard to comment because I’m pretty sure from what Mary said, Steven did make her dinner most nights and, as I said, gave her a great deal of practical help. He took her to all, pretty much probably, not quite all,
there were a couple of other people who helped her with medical appointments, but other than that he took her to appointments with oncologists and numerous other health care professionals, except during the day when he was working. And thing is that in all the times that I visited Mary between when she bought the house in 1979 and when she passed away, I think I’d met Steven there once. So it was undoubtedly a long relationship and, yes, the term “unconventional” is probably a good term. When I think about all the other, anybody else I can think of who are in a long term relationship, in visiting one you’d see evidence of the other. So it was just unusual. I would go and visit her but, you know, I couldn’t really strongly comment. ...

[44] Taken together I am satisfied that despite the way in which Mary chose to categorise 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 a de facto relationship. In particular I am satisfied that his description of the relationship is confirmed and corroborated by:

(a) its undisputed duration;

(b) the maintenance of a sexual relationship until Mary was diagnosed with cancer;

(c) the clear accounts given by Vicki Moon, Pamela Doyle, Maxine Blake, Ruth Henderson and Maurice Grey, none of whom were cross-examined; and

(d) the considered and frank opinions provided by both Patrick and Anthony in evidence before me, with Anthony’s explanation in cross-examination largely reinforcing his contemporary description of Steven 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 the time that she and Steven first started going out substantially restricted her ability to participate in society generally. Not only did this prevent her undertaking activities with 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’s ongoing medical issues the familiarity of her own home was important for her to

maintain, but, given its acknowledged small size, Steven also needed to maintain his own separate residence for both his residence and business. I therefore also conclude that in this situation the absence of shared assets was not material.

[46] Ultimately the picture that emerges is of two quite private people who formed a relationship that worked for them despite very considerable difficulties arising from Mary’s medical conditions. There can be no doubt whatsoever how important this relationship was, not just to Steven, but also to Mary. This is confirmed by her note expressing the symbolic importance of her bequest of her ashes (see [18] above), and when Steven suffered his bicycle accident in January 2016. This second event, as Anthony noted, resulted in a greater closeness of their relationship leading to the purchase of a ring by Steven, which Mary wore until her death.

[47] I accordingly conclude that when viewed objectively and in its totality the substance 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 facto relationship for the purposes of the Relationship (Property) Act.

[48] In light of this finding, Steven is entitled to bring the application under the Family 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 the following reasons:

(a) There is no evidence of any contribution by [Steven] which increased the value of the assets of the estate, the major property having been all acquired before the relationship, and any increase in cash or shares (which is unclear from the evidence) was not obtained with any meaningful contribution by [Steven];

(b) [Steven] and Mary had an unconventional relationship where everything was separate. That goes for everything from their houses, to their chattels, to their interests. Why in death should there be any different treatment;

(c) There were no children of the relationship;
(d) [Steven] was able to work throughout the relationship. We have limited information about his earnings other than one poor year prior to Mary’s death. He gave mixed evidence, of, on the one hand, working extremely hard and weekends (which is why he was never there when [Anthony] visited) but on the other, that he had to scale back 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’s care 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 judiciary in family protection cases is simply a “shorthand expression “to” describe the obligation to make ‘adequate provision ... for the proper maintenance of support’ of legatees”.⁴

[51] It follows that whether Mary breached “moral duty” to Steven will depend on whether Steven can show Mary he failed to make adequate provision for his proper maintenance and support.⁵

[52] The test to be applied is that set out in Williams v Aucutt:⁶
The test is whether adequate provision has been made for the proper maintenance and support of the claimant. "Support" is an additional and wider term than "maintenance". In using the composite expression, and requiring "proper" maintenance and support, the legislation recognises that a broader approach is required and the authorities referred to establish that moral and ethical considerations are to be taken into account in determining the scope of the duty. "Support" is used in its wider dictionary sense of "sustaining, providing comfort". A child's path through life is supported not simply by financial provision to meet economic needs and contingencies but also by recognition of belonging to the family and of having been an important part of the overall life of the deceased. Just what provision will constitute proper support in this latter respect is a matter of judgment in all the circumstances of the particular case.

⁴ Henry v Henry [2007] NZCA 42, [2007] NZFLR 640 at [27].

⁵ Williams v Aucutt [2000] NZCA 289; (2000) 2 NZLR 479 (CA) at [68].

⁶ At [52].

[53] As Heath J subsequently explained in Re Williams:⁷
As 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 moral and ethical considerations. Emotional and psychological support will often be as important as material financial assistance: such is the nature of the sense of belonging to a family, which the concept of support seeks to capture.
On the other hand, the Court must give proper weight and respect to the testamentary wishes of the testator. As the Court of Appeal has emphasised, if the testator has failed to provide adequately for a qualified claimant, any award to remedy the breach of moral duty must be assessed by reference to what is required to remedy the breach. It is also appropriate for the Court, in cases where no, or a small, provision has been left for a particular qualified claimant to award an amount to that claimant if a justifiable sense of exclusion from participation in the family estate results from the testamentary disposition.

[54] The authorities thus recognise two categories where “proper maintenance and support is required”:

(a) economic needs and contingencies; and

(b) the need for recognition of belonging to the family or having been an important part of the life of the deceased.

[55] In this case, having received only Mary’s ashes in her will, Steven argues both factors are present. It is clear that the primary weight of Steven’s case has been on the second of these issues. In particular, the impact of finding that he had not been provided for in the will was a consistent theme of Steven’s evidence. He explained that 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 and unappreciated. It was as if I was nobody in her life. I had spent nearly every day with her for 27 years, except for 2 ½ weeks when I was in hospital and some 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. I feel 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 a

⁷ 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 I had little savings for the future.

[57] The situation with regard to Steven’s “economic needs and contingencies” is less clear. Steven has given evidence that his commitment to looking after Mary, particularly after her cancer diagnosis in 2015, resulted in his business suffering and eventually 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 age of 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 the impact Steven’s care for Mary had on his engineering consultancy over the years, or indeed what his income was throughout the period of his relationship with Mary.8 On the other hand there was considerable evidence that Steven had in fact worked hard throughout the period and used the need to work at his business as a reason for not being able to attend Doyle family functions. There is likewise no reason given as to why 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 to first principles, Steven is nearing the end of his working life, and while as Mr Moss notes Steven does own his own house outright, that of itself in Auckland does not mean he is not “necessitous” given he needs to live somewhere, and should he be required to sell the property he would have to acquire another in the same market. Outside of the 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 given the nature of Steven and Mary’s relationship, Mary did fail to make adequate provision for Steven under both headings set out in [54] above. Accordingly, Mary was in breach of 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 documents were 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 from the specific matters noted in the Schedule to this judgment.

[62] Ms Callanan on behalf of Steven submitted that as the spouse of Mary, Steven had a “paramount claim”, which in the absence of any other potential claimants under the Act meant that Steven was entitled to the whole estate. Ms Callanan relied particularly on the decision of Re Toomey a decision of Judge P J Keane (as he then was) in the Family Court.⁹ In that case Judge Keane awarded the whole of a small estate to the widow of the deceased. His Honour relied in particular on the decision of 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 no conflicting moral claims of other dependants), to make such provision as will enable her, taken in conjunction with her own means, to live with comfort and without pecuniary anxiety in such state of life as she was accustomed to in her husband's lifetime or would have been accustomed to if her husband had then done his duty to her ...

Discussion and Analysis – Issue Three

[63] Having considered Ms Callanan’s submissions on this issue, I am satisfied that the suggestion that in the absence of other claimants to whom a testator or testatrix owes a moral duty a spouse is automatically entitled to take the whole estate does not reflect the settled law, and indeed is not what the Court of Appeal said in Kallil. With respect to Ms Callanan, Re Toomey cannot override that position and at most should be 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 established then, as Mr Moss submitted, the position is as set out by the Court of Appeal in Henry v Henry:¹¹

• [54] In both Williams v Aucutt and Auckland City Mission v Brown the focus was on what was required to remedy the failure to make adequate provision in the will. In both cases there was no real dispute in this Court that such a failure had occurred. It is likely that the Court's remarks about conservatism were also focused on the extent to which the will should be

⁹ 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 is clear on that: the award to the claimant should be no more than is necessary to remedy the failure. This Court's concern appeared to be that that approach was not being strictly followed. So, in that context, conservative means simply "no more than the minimum necessary to make the adequate provision".

[55] However, the call for conservatism is not limited to the question of what should be done to remedy a failure to make adequate provision. It applies also to the assessment of the issue as to whether adequate provision has been made. Again a mere perception of unfairness is not a good enough reason to disturb the will: the Court must conclude that the claimant has established that he or she has not received adequate provision for proper maintenance and support. That assessment must be made applying the test enunciated by Richardson 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 the Court to override the testamentary freedom of the testator or testatrix if that test is not met, even if it appears to the Judge that a fairer distribution of the estate would have been desirable.

[64] The conventional position is reflected in cases such as Wylie v Wylie where the Court of Appeal noted:12

The law entitles Mrs Wylie to generous recognition of her long and effective contribution to the marriage and to the creation of the family assets. But even for an exemplary wife such as Mrs Wylie it limits her claim to the extent of deficiency in terms of the statutory moral and ethical standards considered by this Court in Williams v Aucutt ... of her need of proper “maintenance” and her entitlement to the support that includes due recognition of her role in the family. The issue is whether that was not duly provided to her by the successive acts of recognition by Mr Wylie and the trustees.

...

While the law now treats exactly alike male and female claimants under the Family Protection Act who are similarly placed, Williams v Aucutt confirms that the Court has no authority to rewrite a will to achieve parity. It may intervene only if, and to the extent, there is breach of the moral and ethical duty that a just and wise testator can be held to owe them in all the circumstances of the case.

[65] The position is clear that notwithstanding Mary’s breach of moral duty, Steven has no automatic right to Mary’s entire estate, but rather only to what is required to fulfil the testator’s moral duty.13 The question therefore turns to what provision is necessary to Steven to rectify the breach identified.

¹² Wylie v Wylie [2003] NZCA 99; (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 emotional support and recognition of Steven and Mary’s relationship, and taking into account Steven’s financial position. On the other hand Mary was otherwise entitled to dispose of her estate as she wanted. It is clear from the evidence that Patrick and indeed the other members of the Doyle family had a good relationship with Mary and supported her as much as they were able, and there is no need for Patrick to have to justify Mary’s bequest to him. I also take into account the fact that both Mary and Steven were essentially financially independent throughout their lives together, and that Steven too had exercised his choice not to leave all his own estate to Mary, had he died before she did. 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 be distributed, I conclude that Steven is entitled to receive a payment of $300,000, to be paid out of Mary’s estate.

[67] Finally, although agreement was able to be reached in relation to the specific bequests set out in the Schedule, no agreement was reached with regard to the remaining household goods and personal effects left to Patrick and Anthony pursuant to Clause 4.7 of Mary’s will, apart from the ring purchased by Steven for Mary, which it was agreed is to be provided to Steven. Steven has indicated that he wishes to receive a number of items, currently held in storage by the Public Trust, together with a jewellery box currently in Steven’s possession. In contrast Mr Moss has submitted that 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 their respective positions, based on my findings in this judgment, and in particular my conclusion that Steven was Mary’s de facto partner and that he was entitled to be recognised as belonging to the family and having been an important part of Mary’s life. Given this position, recognition through the provision of Mary’s personal effects as sought by Steven would appear to be appropriate unless there are good reasons as to why it is inappropriate for particular chattels to be transferred. In the event that no agreement is however possible, I will determine the issue after giving both parties the opportunity 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 after payment/transfer of the items set out in the Schedule to this judgment. As this payment to Steven will almost certainly require the sale of the Fairview Avenue, leave is reserved for the parties and in particular the Public Trust to return to Court to obtain such further orders as may be necessary to give effect to this judgment.

(b) For the reasons that will be apparent from this judgment I consider that both Steven and Patrick took principled approaches to the litigation and both have succeeded to an extent; Steven in that he was in a de facto relationship with Mary and entitled to a share of her estate, and Patrick has been successful in resisting Steven’s claim to the whole estate. In the circumstances I consider it appropriate for the costs of all parties to be met out of the estate. In the event that any issue arises with the calculation of costs, leave is reserved for the parties to return to the Court for determination of the issue following the submitting of memoranda.

(c) Steven, Patrick and Anthony will have until 22 June 2018 to see if agreement can be reached on those items sought by Steven that come within cl 4.7 of Mary’s will. If agreement is reached counsel are to confirm the position by way of joint memorandum. In the event that no agreement is reached any further submissions and/or evidence on the issue are to be filed by 29 June 2018, following which I will determine the issue on the papers.

Powell J

Schedule

Specific Bequests in Mary Doyle’s will not challenged by the present proceedings:

(a) Clause 4.2, the shares and rights to shares in GuocoLeisure Limited to Marly Ysa-Doyle Doyle;
(b) Clause 4.3, the shares and rights to shares in Contact Energy to Jessica Reagan Doyle;
(c) Clause 4.4, French painting to Patrick David Doyle;
(d) Clause 4.5, her carriage clock and Aunt Norah rug to Anthony James Doyle; and
(e) Clause 4.6, her writing desk (excluding contents) to Christopher Chitty if he survived her.