Aged in her seventies, Lynette Gibson was in the High Court challenging terms of her father’s will nearly fifty years after his death and threatening similar challenges would be made against her mother’s estate with her mother still alive and then one year shy of her one hundredth birthday.
Lynette comes from a Waikato farming family. Her main complaint is the inequity visited on daughters when sons are preferred as inheritor of the family farm. Sister Gaylene did not join Lynette in her challenge to their late father’s will.
The High Court was told their father Lewis Wait died in 1976, of cancer at age 55. The family farm at Cambridge was owned 50/50 between Lewis and wife Nellie.
Terms of Lewis’ will left a life interest in his half share of the farm to his widow, with full ownership of his half share passing to son Robert on Nellie’s death. The other half share remained in Nellie’s ownership on her spouse’s death. Nellie was well provided for; she would receive all profits from farm operations.
Robert abandoned university studies as his father’s health declined, returning home to manage the farm. He continued to manage the farm on his death.
The two daughters were named in Lewis’ will as each receiving one twelfth of the value of his half share of the farm, valuation to be taken at the date of his death but payment not made until the death of their mother. As events transpired, their mother was still alive four decades later.
In 2023, Lynette was in court asking for permission to bring a claim against her late father’s estate under the Family Protection Act. There are strict time limits. Claims must be made within twelve months of death. Her claim was some 45 years late.
Lynette said there were special circumstances.
No claim was made straight after her father’s death because her father had promised a more equitable redistribution of family assets would be made by their mother through terms of her will, she said. Her siblings dispute whether there was ever any such understanding that there would be a ‘levelling up’.
Lynette said her concerns were heightened in 2021 when she learnt her mother had five years previously gifted away her half interest in the family farm, part of deal seeing her half interest transferred into a family trust created by son Robert for the benefit of Robert and his family. Their mother’s half share was valued in 2016 at $4.5 million.
With her mother giving away her most valuable asset, there would be little chance of a ‘levelling up,’ Lynette said.
The High Court was told Lynette and her sister had received some cash distributions subsequent to their father’s death: $1300 each in 1986 when Robert assumed full ownership of farm livestock as a sharemilker; $520,000 each in 2021 from a Lewis family trust established when their father was alive.
Justice Campbell ruled it was far too late for Lynette to make a Family Protection Act claim against her late father’s estate. Her chances of a successful claim were weak, he said. Decades on, it would be impossible to find independent witnesses supporting her claim of a promise to ‘level up’ distribution of family assets between her siblings. In addition, son Robert would be seriously prejudiced in that he had organised his business affairs through the intervening decades on the assumption that no family claims would be made against his business.
Their mother Nellie died while Lynette’s Family Protection Act application was being considered.
Gibson v. Makgill – High Court (12.04.24)
24.090