A risible bequest to a son amounting to 0.2 per cent of a farmer’s $2.4 million estate led to a Family Protection Act claim by Lindsay Burgess against his late father’s estate. His estate payout was increased from $5000 to $400,000.
Te Aroha farmer David Burgess died in 2019. Other than a $5000 bequest to each of his children, all his estate was transferred to a family trust. His son Lindsay is not a beneficiary of this trust. The primary beneficiaries are Lindsay’s brother Kevin together with Lindsay’s stepmother Noi and her child Guy.
Negotiations with trustees came to nothing. Lindsay was asking for $500,000; the trustees were willing to pay about $300,000, with payment made by transferring to him a Wairongomai Road estate property.
Lindsay sued under the Family Protection Act. This Act allows reallocation of distributions under a will or intestacy following failure to provide ‘proper maintenance and support;’ wording given a liberal interpretation by judges over time, awarding compensation where there has been breach of a moral duty to acknowledge a family relationship.
The High Court was told Lindsay during his working life returned to the family farm repeatedly for extended periods of time to help out at times of family emergencies, primarily when his mother was terminally ill and later when his father became unable to work the farm. Immediately after his father’s death, he continued to oversee farm operations. Part of the time, Lindsay earned income sharemilking on the property but his work extended beyond that contractually required from a sharemilker. He was paid a minimal wage for extra work done; payment sometimes being payment in kind with gifts of motor vehicles.
Lindsay said this work prevented him from getting ahead, building up assets with better pay from alternative employment. Evidence was given that currently his only income is a social welfare benefit, the result of a ‘bungled’ hip operation.
Justice Harvey ruled Lindsay was entitled to a greater contribution from his late father’s estate, awarding $400,000 and specifying this is to be paid in cash, not kind.
Estate trustees argued no further payment was appropriate, given that Lindsay’s father specifically stated in his will that Lindsay was to receive less because ‘adequate provision’ had been made for Lindsay during his lifetime and because he had received a ‘substantial’ provision from his mother’s estate.
There was evidence that Lindsay’s inheritance from his mother had been reduced after a family dispute over terms of her will which was settled with an out-of-court family agreement. The court was told part of Lindsay’s inheritance from his mother was paid to his then wife when their marriage ended.
Burgess v. Burgess – High Court (29.06.23)
23.104