Ten days after George Rawson took initial steps to remove spouse Lucinda Prescott as beneficiary under his will, he was found dead at the bottom of stairs at his Auckland Browns Bay home. Brother Roy Rawson took his suspicions to police, later taking court action as trustee of his brother’s family trust attempting to evict Lucinda from the property.
Associate Judge Sussock put eviction on hold. Factual detail surrounding George Rawson’s Family Trust ownership of the Redwing Street property had to be sorted out.
Evidence was given that George put ownership of Redwing Street into a family trust in 2004. Brother Roy is a trustee. Named as final beneficiaries are George’s informally adopted son, Jacob, plus any further children George might subsequently have.
George and Lucinda commenced a de facto relationship six years later, marrying in 2013.
Following George’s unexpected death in 2022, Roy as trustee told Lucinda it was time to leave Redwing Street.
Roy says she was paid some $8500 by Jacob to assist in payment of a bond for alternative accommodation, but then refused to leave. A trespass notice was issued. Lucinda countered by saying a ‘memorandum of wishes’ signed by George in 2013 gave her the right to stay at Redwing Street, despite it being Trust property, which together with a ‘protection clause’ in their relationship property ‘contracting out’ agreement entitled her to benefits potentially worth $1.14 million.
The High Court was told George and Lucinda signed a ‘contracting out’ agreement at time of their 2013 marriage acknowledging Redwing Street was not relationship property. Lucinda says a provision in this agreement, headed ‘protection of Lucinda’ entitles her to a life interest in both the George Lawson Trust assets and George’s estate on his death.
Judge Sussock ruled a detailed court hearing is needed to establish operation of the 2013 memorandum of wishes and the agreed ‘protection’ provision.
As a general rule, a memorandum of wishes directed by a trust settlor to trustees is not enforceable. Trustees may feel morally obliged to subsequently comply, but they are not legally required to do so.
Brother Roy says George was taking steps before his death to remove all benefits accruing to Lucinda after discovering she was having an affair with a mutual friend. Lucinda admits to the affair, but says it was brief and that she and George subsequently reconciled.
She claims circumstances surrounding both the memorandum of wishes and signing of their contracting out agreement are such that she has the right to live at Redwing Street and cannot be evicted.
Rawson v. Prescott – High Court (15.07.24)
24.174