district court logo

Sands v Executor of B F O'Horgan Estate [2016] NZFC 8970

Published 31 August 2017

Reserved judgment — whether de facto relationship — grounds for unequal division of property — non disclosure of relationship to WINZ — intent to defeat rights of applicant — whether applicant's rights were defeated — whether moral duty breached — Property (Relationships) Act 1976 — Family Protection Act 1980. The applicant claimed that she was in a de facto relationship with the deceased until his death, with the exception of a short break in the relationship of around five to six weeks in 2001. The trustees disputed the nature and extent of the relationship that existed. In deciding that the applicant and the deceased were in a legally qualifying relationship, the court had regard to whether the parties were living together as a couple, the duration of the relationship, nature and extent of the common residence, whether a sexual relationship existed, the financial and property arrangements, degree of mutual commitment to a shared life, the care and support of children, performance of household duties, and the reputation and public aspects of the relationship. The court found that the deceased did his best to maintain two separate lives, kept the applicant away from his family and did not disclose the true nature of their relationship. The deceased had told his children that the applicant was a caregiver. The court found that in 2001, when the applicant transferred a property to her son, and the deceased settled his family trust, sold his property to the trust, and signed a will leaving the applicant $10,000. The court found that the applicant and the deceased were in a qualifying legal relationship from at least 1994. The court considered whether the deceased had intended to defeat a claim by the applicant in establishing a family trust, and found that there was no intention to do so. The court further found that the applicant could make a claim under s 44C under which the court had discretion to make an order for compensation in favour of the applicant. A compensatory award was made in the sum of $50,000. The court declared that the deceased did not breach his moral obligation to the applicant. The court declared that the parties were in a qualifying de facto relation between 1994 and 2013. The applicant's claim under s 44 was declined, a compensatory award of $50,000 was made in favour of the applicant, and the deceased was declared not to have breached his moral duty to the applicant. The applicant was also found to be entitled to a payment of interest bequest of $20,000 made by the deceased. Judgment Date: 28 October 2016. * * * Note: Names have been changed to comply with legal requirements * * *