Emora Hita’s claim that sister Sam held assets from their late father’s estate on a secret trust for the benefit of all their siblings was dismissed in the High Court, but Emora was awarded $55,000 in a Family Protection Act claim.
Justice Anderson expressed dismay at family ructions caused by a do-it-yourself will completed online from a template downloaded from the internet. Getting advice from a Community Law Centre or Citizens Advice Bureau before signing could have avoided the subsequent fallout between members of the Hita family, she said.
Edward Hita died in 2020, aged 61, leaving an estate valued at about $360,000 with the main asset being his home on Awakino Street in Te Kuiti. His wife Ngapoko had died the previous year. The High Court was told Ngapoko died without a will. Legal complications that followed led family members to prod Edward into drawing up a will for himself.
Evidence was given of daughter Samantha (known as Sam) assisting her father to draw up a will. She found a template on line, leaving her father to fill in the details. He listed his five children under the heading of ‘children’ but made no further mention of them, other than listing Sam as sole executor and effectively leaving her as sole beneficiary; the will made no gifts to any person, leaving the ‘residue’ to Sam.
Sam was the family ‘organiser.’ After her mother’s death, she made sure her father kept on top of things and paid bills on time. She remonstrated with sister Emora after Emora and family shifted in with their father for a period, paying rent sporadically.
The fact Edward’s will left everything to Sam caused a family dispute. Sam said their father had left everything to her, relying on her to ‘sort out his stuff.’ Meetings between Sam and her siblings came up with various options on how their father’s assets might be divided, ranging from a straight division between Edward’s five children and two step-children to a list of specific assets going to specific individuals. No agreement was reached. Lawyers got involved.
A claim Edward’s will should be invalidated on grounds of undue influence by Sam was dismissed. Justice Anderson said that while Sam had been very ‘hands on’ in assisting their father with his finances, there was no evidence of any undue influence when the will was prepared.
Emora said a secret trust existed; an agreement between Sam and their father at the time the will was prepared that while all assets were going to Sam she held those assets on behalf of her siblings.
A secret trust is an agreement between will-maker and trustee, made to take effect on death, in which the trustee agrees to use estate assets for the benefit of a person not named specifically in the will; historically used to benefit extra-marital partners or children born out of wedlock enabling them to inherit without their existence disclosed to immediate family.
Emora claimed there was a secret trust requiring Sam to distribute estate assets equally between all siblings. Justice Anderson said there were no events either before or after Edward’s death to support the existence of a secret trust, stipulating how his assets were to be distributed.
Separately, Emora made a Family Protection Act claim against her father’s estate. Completely excluding her from his will breached a legal duty to provide maintenance and support owed children by a parent, she claimed. The court was told Emora was unemployed at the time the will was signed. She subsequently got a job. Her only asset of substance is a car. She was awarded $55,000, calculated at about fifteen per cent of her late father’s estate.
Hita v. Hita – High Court (15.08.23)
23.138