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One of three brothers left a much smaller share of his late mother’s $4.4 million estate has failed in a Court of Appeal challenge to prove she breached her “moral duty” to him.
Graeme Barnard is one of three sons of Margaret Barnard, who died in June 2019. Margaret, alongsideher husband who died in 2007, had owned a 40ha sheep farm in Kairanga before retiring to Palmerston North.
The couple had amassed the small fortune including a share portfolio of $3.2m plus their retirement home.
For reasons that are not entirely clear, Graeme received a smaller share of the estate than his brothers Timothy and Roger.
Of the share portfolio, Timothy and Roger received $250,000 each with the remainder divided into three equal shares, with the two brothers receiving their shares outright as lump sums.
Graeme only received a life interest share with a value of $374,353 which would earn him $26,000 per year after tax. The value of his shares was to be paid to his brothers upon his death.
By contrast, the capital value of his brothers’ shares in the investments was a little under $900,000 each.
He also didn’t receive $250,000 in cash like his brothers, but his mother gifted him her one-third share in his own home, worth about $386,000. Margaret had bought into his home in 2008 when his marriage split.
Outside of these arrangements, the remainder of the estate was split among the three equally. All walked away with a further $290,000.
But Graeme’s sons would not have inherited his share if he died before his mother, as his brothers’ children would.
Graeme, believing his mother hadn’t provided him an adequate share, lodged a claim in the High Court. He said he spent substantially more time caring for his mother than his brothers, who lived further away.
He said Margaret never explained why his inheritance was different from his brothers. However, his brothers suggested it was designed to protect Graeme from his own business failings and from his former wife accessing their mother’s money.
Graeme denied his businesses were failing. He accepted his mother may have had concerns about his wife, whom he separated from in 2007 and did not divorce until shortly after Margaret’s death.
Graeme Barnard went to the Court of Appeal after the High Court dismissed his challenge to his late mother's will. Photo / NZME
Last March, the late Justice Simon France dismissed his claim.
He said while Graeme had been a dutiful son to his widowed mother, his mother “assisted Graeme in his lifetime in a way not provided to the other sons”, including allowing him to live in a mortgage-free home at the age of 54.
He ruled while the will’s differential treatment was “unfair” to Graeme, he was properly provided for nonetheless.
France said the brothers displayed “a deep antipathy” for each other and had “descended into pettiness” through their claims.
Graeme appealed to the Court of Appeal, which released its judgment this week.
He maintained that his mother breached her moral duty in failing to provide for him fairly, and said evidence from witnesses who spoke of his care for his mother was not considered with adequate weight. The court disagreed.
Graeme’s claim that the High Court incorrectly calculated the total shares of his brothers was also dismissed.
The court ruled the matter at hand was whether Graeme himself was properly provided for, not how his share compared to his brothers.
When it came to the argument Graeme had a “special claim” over his mother’s estate due to his contribution to her care, the court found no error in the High Court’s assessment.
“While acknowledging that Graeme’s involvement in his parents’ lives may necessarily have been greater than that of his brothers by dint of geography, [France] did not consider that the level of this involvement could be regarded as ‘special’ in any relevant sense.
“We are unable to discern any error in the judge’s assessment.”
Considering his claim that the split between the brothers was unfair, the court upheld the High Court’s assessment.
“It certainly could not safely or fairly be concluded that Mrs Barnard’s treatment of Graeme in her will was capricious or could reasonably be seen as giving rise to a sense of exclusion.”
The real test was whether Margaret failed to fulfill her “moral duty” to provide for Graeme in her will. The court ruled she did not.
Ethan Griffiths covers crime and justice stories nationwide for Open Justice. He joined NZME in 2020, previously working as a regional reporter in Whanganui and South Taranaki.
