Gerard van den Bogaart lived with his parents at their Auckland Opaheke home, near Papakura, for many years prior to their deaths five years ago. Now in dispute with his siblings over rights to the two million dollar property, the High Court learnt of legal hiccoughs which saw his parents bequeathing their home and other assets to a family trust which no longer existed.
With the Trust as the only named beneficiary having been wound up and no longer in existence, their wills were of no effect; their parents’ estates are wound up as an intestacy, with assets to be divided according to statutory rules in the Administration Act.
The High Court was told patriarch Wilhelmus set up a family trust in 1975. The Trust had a stated distribution date of March 2000. That date slipped past unnoticed. In 2018, the essence of the original Trust was revived with a deed of family arrangement agreeing that trust assets would be distributed between family members on an agreed formula and the Trust wound up. All beneficiaries signed.
The family home was never a Trust asset.
In an oversight, there was a failure to amend wills signed by Wilhelmus and spouse Anna stating that the family home and surrounding land would pass to the Trust on their deaths.
On their deaths, there was no longer in existence any family trust to take ownership of the family home.
This resulted in proposals for yet another deed of family arrangement. A 2021 draft agreement proposed adjusting inheritance rights that would otherwise apply through the Administration Act; an agreement intended to give effect to their parents’ intentions. All those affected signed, except Gerard.
He claims their father promised him the Opaheke property in return for years of work he spent maintaining the property. He claims there have been secret deals between family members dealing in Trust assets to his disadvantage.
He departed the property, where he had been living rent free, only after a Tenancy Tribunal hearing ordered his eviction. His siblings complain the property was left in a mess, requiring substantial work in preparation for sale.
Justice Anderson dismissed Gerard’s request for an injunction blocking a sale.
Gerard’s primary demand is for a forensic audit of Trust activities, Justice Anderson said. That is a separate issue from sale of the Opaheke property, which is an estate asset, not a trust asset.
Should Gerard decide to carry on with a claim against his parents’ estates, compensation for any successful claim is the better remedy, he said. Sale of the Opaheke property could go ahead.
The court was told Gerard would receive a one-seventh interest in his parents’ estates if divided according to Administration Act rules, a one-eighth share if he signed the 2021 proposed deed of family arrangement.
van den Bogaart v. van den Bogaart – High Court (21.11.24)
25.037