Family Court awards son cut from mother’s will 65% of estate originally given to uncle

The Family Court said a mother who left her only son out of her will owed him a moral duty, despite the history of wills that showed she did not wish to provide for him. The decision is now under appeal. Photo / 123rf

A man left out of his mother’s will has successfully fought for a share of the estate, most of which had been given to his uncle and aunt and a small amount to charity.

While the Family Court has now awarded Roger* 65% of the value of the “small” estate, his gain might be short-lived.

The uncle, whose share in the estate has been cut significantly from the 90% he was originally awarded, has now appealed, lawyers acting for each party confirmed.

Roger, who was adopted as an infant and placed in state care as a teen, lodged the claim in the Family Court under the Family Protection Act, asserting a breach of moral duty.

His uncle defended the claim, asserting “disentitling conduct” by his nephew.

Lawyer Glenn Mason, acting for the uncle, originally submitted that any provision for Roger should be limited to $30,000, or something close to 10% of the value of the estate.

John Unsworth, acting for [Roger], suggested he should receive an award closer to 80% of the value of the estate, noting that the court’s role was to remedy the breach.

In a recently published decision, Judge Jill Moss said she was satisfied that [Roger’s] mother owed him a moral duty, and that he needed support and maintenance, despite the history of wills, which showed she did not wish to provide for him.

Adopted as an infant; difficult childhood

Roger had a difficult childhood, and later spent time in prison for offending which included violence, some of it serious.

A string of other misfortunes followed, including a serious head injury from a late-night assault.

His adoptive mother died in December 2022, but did not leave him a penny.

The Family Court has decided that a mother who left her only son out of her will owed him a moral duty, and that he was in need of support and maintenance, despite the history of wills, which showed she did not wish to provide for him. Photo / 123rf

By then, she had been divorced for some time, the court said.

Judge Moss said Roger’s uncle described him as “always a difficult child” who was “dishonest, unco-operative and very challenging”.

He knew he was “causing hurt to his parents”, according to a note Roger once wrote to them and presented to the court.

In it, he apologised for what he had done in his “mixed-up life” and said he was leaving home because he was “hurting their feelings too much”.

Judge Moss said while the note attempted to establish that Roger was responsible for himself, it appeared more like a “typical muddled set of emotions in a teenager” who was not managing well.

She accepted evidence that established his difficult childhood and that his parents could not manage his “impulsive and difficult behaviour”.

Placed in state care at 15

When he was a teenager, his parents considered that they could not control him and at age 15, he was placed in state care, in a group family home, where he claimed to have been sexually and physically abused.

Evidence to back his allegations was presented in the form of a claim for damages as a result of abuse in state care.

Judge Moss noted his placement in state care happened before the Oranga Tamariki Act, and before a substantial amendment to the level of supervision of time in state care.

As a teenager Roger's* parents considered they could not control him. He was placed in state care, in a group family home, where he claimed to have been sexually and physically abused. Illustration / Paul Slater

Roger left state care in the late 1980s, after which he had “periodic, serious criminal trouble”, leading to four terms of imprisonment, Judge Moss said.

He later moved overseas with a girlfriend, and gained work but got into difficulties.

His father offered support, including getting him back to New Zealand, Judge Moss said.

After Roger was back in his parents’ care, his mother left the family home and, for a short time, had almost no contact with her son as she distanced herself from the community in which she had lived.

Reconnection after mother left family home

The pair later reconnected, and Roger married and achieved some success.

Judge Moss said he ran a business “which may have been a brothel”, or perhaps a high-end escort agency, which brought Roger and his partner a degree of material comfort.

However, his mother was unhappy and would not visit her son, whose marriage gradually eroded and ended.

He had children from a subsequent relationship, which led to a form of reconciliation with his mother, but the bonds were not close, Judge Moss said.

Roger was then the victim of a late-night attack that left him with a serious head injury, from which he took a long time to recover and he “readily agreed” he did not manage this wisely, Judge Moss said.

His mother had been supported by her siblings after her marriage ended. In the final years of her life, the brother to whom she left the bulk of her estate was more involved in her care, and increasingly took responsibility for supporting her.

Judge Moss said three years before her death, Roger’s mother, who had left her estate to two charitable organisations, created a new will, which left 90% to her brother, 10% to a charity and nothing to her other siblings or son.

Judge Moss was ultimately satisfied that Roger’s mother owed him a moral duty, and that he needed support and maintenance.

She noted the lack of significant challenge to either of those propositions and that it was likely Roger’s mother had wished for more from him than she received.

Son acknowledged distress caused

He acknowledged his actions had caused her distress, but Judge Moss said criminal offending had “rarely justified a refusal to make provision”.

She said the latter offending was in the context of residual effects of head injury.

“If anything, the ongoing adversity from the head injury strengthens [Roger’s] claim for support rather than enhancing the evidence related to disentitling conduct.”

Ultimately, she was not satisfied that there was “disentitling conduct or character” and in her view, the claim established a breach of moral duty.

The 10% bequest to the charitable organisation remained unchanged.

Unsworth told NZME an appeal hearing was set for the High Court at Wellington in July.

*Names have been altered in accordance with statutory reporting guidelines designed to protect vulnerable people in Family Court proceedings.

Tracy Neal is a Nelson-based Open Justice reporter at NZME. She was previously RNZ’s regional reporter in Nelson-Marlborough and has covered general news, including court and local government for the Nelson Mail.