An extra $900,000 awarded New Plymouth’s Brian and Shirley McEldowney as a testamentary promises claim on top of their existing bequest from the $6.1 million estate of friend Dawn Kennedy was overturned by the High Court as being plainly excessive, cutting their inheritance by two-thirds.
Widowed and with no immediate family, Dawn Kennedy died in 2020. In her will she left gifts of $100,000 each to Mr & Mrs McEldowney (to be adjusted by the rate of inflation from date of her 2013 will) to mark the care and assistance they had provided in her later years. The bulk of her estate goes to an education trust to fund students studying engineering.
The McEldowneys challenged her will with claims under the Law Reform (Testamentary Promises) Act. After a Family Court hearing, Mr McEldowney was awarded net sale proceeds of Dawn Kennedy’s Tukapa Street property ($574,250) on the basis that he had been promised the property on her death. The Family Court also awarded further cash to each: Mr McEldowney ($300,000) and Mrs McEldowney ($600,000), as reward for services provided Mrs Kennedy in the decade before her death.
Evidence was given of Mrs McEldowney first becoming acquainted with Mrs Kennedy as a Presbyterian Support Services nurse caring for Mrs Kennedy’s father. A friendship developed between the Kennedys and the McEldowneys. After she was widowed, Mrs Kennedy was ‘treated as family’ by the McEldowneys. This extended to them taking Mrs Kennedy into their home at times when she was ill or recovering from an accident. Mrs Kennedy was resident of a rest home when she died.
Lawyers acting as executors of her estate challenged these extra payments awarded by the Family Court.
In the High Court, Justice Cooke ruled Mr McEldowney’s claim to $574,250 from sale proceeds of Tukapa Street was adequate compensation for them both, representing generous compensation for the care and support provided Mrs Kennedy. The two $100,000 bequests already paid are to be deducted from this $574,250.
Prior to the High Court appeal, the McEldowneys stood to receive a total of $1.67 million from Dawn Kennedy’s state. After the appeal, they get $574,000.
While the McEldowneys assistance to Mrs Kennedy was significant, it did not involve the significant personal sacrifice as seen when a child foregoes employment or other activities to care for a parent. As a proportion of the overall value of the estate, the extra amount awarded by the Family Court exceeded what would likely be awarded to a child making a testamentary promises claim against the estate of a parent, Justice Cooke said.
Reeves & Middleton v. McEldowney – High Court (7.09.23)
23.192