After living together for 45 years in their Auckland Cockle Bay home and raising five children, Jocelyn Smith failed in a claim to her late husband’s half share in the property because they were estranged at the time of his 2019 death and there was no expectation she would benefit.
Together with evidence provided by her children, Jocelyn painted a picture of a spouse who during her married life paid all household bills, did all the housework and all the gardening whilst fully involved first in a cleaning business and later in their meat transport company. Cockle Bay was initially purchased in their joint names. In the normal course of events, her husband’s half share would pass to her on survivorship following his death. The High Court was told that their registered ownership was changed five years prior to Mr Smith’s death at his suggestion, from a joint tenancy to a tenancy in common. The legal effect was to remove the right of survivorship; whoever died first kept their half of the property as an asset in their estate.
George Smith was 90 when he died; Jocelyn 80. Evidence was given that five years prior to his death Mr Smith took legal steps to end their marriage and divide relationship property. An agreement was drawn up. Mr Smith signed; Mrs Smith didn’t. The two lived apart for the last three months of his life.
Mr Smith’s executor wanted Cockle Bay sold to free up cash for the estate. Mr Smith’s will left his estate in trust for his grandchildren. Mrs Smith sued, alleging a constructive trust existed allowing her to continuing living at Cockle Bay for the remainder of her life.
Associate judge Gardiner ruled there was no constructive trust. This required evidence that through her actions Mrs Smith expected to have a life interest in her husband’s share of Cockle Bay after his death. All evidence pointed the other way. The unsigned separation agreement, the change of joint ownership to tenants in common plus lawyers’ correspondence stretching back three years prior to his death were clear; it was intended to sell Cockle Bay and split the proceeds.
The court was told seven of her nine adult grandchildren wanted their grandmother to stay at Cockle Bay for as long as she wished.
Smith v. Endean – High Court (9.06.22)
22.101