Ian Farquharson breached a moral duty owed his only son when he left everything to former wife Opal in a will signed before they had separated and divided all relationship property. Son David was awarded $216,000, just under half his late father’s estate.
Ian’s last will was signed in 2005, when son David was aged 32. Ian’s then wife Opal was named as sole beneficiary. They separated four years later. Formal agreement for division of relationship assets followed. Ian did not update his will. He died in 2017.
The High Court was told that after separation Ian and Opal kept in regular contact, though they lived in separate houses, living independent lives. Son David had moved to Australia to live and work as a labourer. He kept in contact with his father by phone, coupled with occasional return visits. David returned to New Zealand for just under three months to help care for his father shortly before his death.
Opal resisted David’s claim to a share of his late father’s estate. Evidence was given that the two had barely spoken to each other for some eight years. They held differing views over reasons for Opal’s separation from husband Ian. David challenged Opal’s claim to have never received her promised share of Ian’s superannuation payments (a claim later proved to be untrue) and he criticised her use of estate money to pay lawyers’ fees challenging his claimed entitlement to a share of the estate.
Justice Davison awarded David nearly half the value of his late father’s estate under the Family Protection Act. It was breach of a moral duty owed under the Act for Ian not to acknowledge the bond between father and son, especially given that Ian had separated from spouse Opal and divided their relationship property by the time of his death. In calculating the final value of Ian’s estate, Justice Davison added back $49,300 in legal fees charged the estate. It was inappropriate for Opal as executor to use estate money to defend a claim affecting her personal interest as sole beneficiary, he ruled.
Farquharson v. Farquharson – High Court (19.02.21)
21.035