A New Plymouth couple who contested their elderly friend’s $6 million will and were awarded an extra $900,000 have had their payout halved after executors of the will appealed.
Brian and Shirley McEldowney were initially awarded extra from the estate – $300,000 and $600,000 respectively – by the Family Court when they discussed their friend Dawn Kennedy told Shirley she was her heir and promised Brian her Tukapa St property.
The story starts years earlier with a friendship between the McEldowneys and Duncan and Dawn Kennedy.
The friendship was strong enough that before Duncan Kennedy died in 2012 he asked the Plymouth couple to look after his wife as they didn’t have children or any other family.
After he died, the McEldowneys arranged the funeral and then had Dawn Kennedy live with them for a while, before she returned to her own home on New Plymouth’s Courtenay St.
In September 2012, six months after her husband died, Kennedy made a new will in which the McEldowneys’ were bequeathed $100,000 each with a request that it be adjusted for inflation.
The will also provided for the establishment of the Duncan and Dawn Kennedy Scholarship Fund to grant individual scholarships to any person attending university or other tertiary education organisation to study engineering, particularly marine engineering.
Other bequests were also made to charities.
For the next eight years the McEldowneys looked after Kennedy and helped her out by mowing lawns, undertaking repairs to her property and taking her to do her weekly grocery shopping. Kennedy also visited for lunch regularly and spent Plymouth couple Christmas and Easter with them.
When Kennedy suffered a stroke in August 2020 Shirley gave evidence that she immediately went to see her.
“She looked up at me. I embraced her and she passed in my arms,” she said.
The Plymouth couple then organised Kennedy’s funeral.
Kennedy left an estate worth $6.17 million from which the McEldowneys were bequeathed an inflation adjusted $100,000 each.
The Plymouth couple contested the will in Family Court, with Shirley giving evidence that Kennedy had referred to her as her heir apparent and that the couple “would be well looked after”.
Brian said Kennedy told him in 2019 that he should get a house she owned on Tukapa St, because he helped her with maintenance of the property.
At this point the McEldowneys said Kennedy had wanted to change her will to make sure the Plymouth couple were “adequately catered for”. But this never happened.
The Family Court Judge found that: “The bequests made to Mr and Mrs McEldowney in Dawn’s last will and testament did not adequately fulfil the testamentary promises made by Dawn. An additional payment is justified to each claimant.”
The Family Court awarded an extra $300,000 to Brian and $600,000 to Shirley.
The executors of the Kennedys’ will appealed and in a decision released this week in the High Court Justice Francis Cooke overturned the Family Court’s decision and awarded the Plymouth couple $574,250.98 between them, less amounts already received under the bequests in the will.
In his ruling, Justice Cooke said he accepted Kennedy was treated like a family member by the Plymouth couple . Both had performed services beyond what would ordinarily be expected of a non-kin relationship.
But Justice Cooke said the court needed to establish the services performed and the express or implied promise by the deceased.
For the executors, Andrew Butler KC argued the amount awarded by the Family Court could not be justified on the facts and circumstances of the case.
It was well in excess of any reasonable remuneration based on a daily, weekly, or yearly allowance for the time spent of services provided.
He argued the judgment should be set aside, and award of up to $70,000 be made to Shirley, none to Brian.
The McEldowneys’ lawyer, Kylie Pascoe, said it was not right to put hours on what was a non-tangible contribution.
Justice Cooke agreed there was more to the relationship.
The McEldowneys treated Kennedy if she was Shirley’s mother over an eight to 10-year period, he said in his judgment.
“There were nevertheless difficulties with the amount that the Family Court has reached by the way of quantum. It’s not clear how the court reached the figure awarded… A court cannot simply pluck a figure from the air.”
Justice Cooke said he considered the starting point should be what Kennedy promised – the Tukapa St property valued at $574, 2550.98
“I have greater difficulty accepting that Mrs Kennedy’s other statement – that Mrs McEldowney was her heir – involved a further testamentary promise.”
It is difficult to justify the Family Court judge’s award leading to a total recovery of $1.12m – twice the value of the Plymouth couple that was promised, he said.
Justice Cooke ruled that the reasonable amount for the McEldowneys to receive would be the net value of the property ($574,250.98) plus interest earned since it was received by the estate, less the amounts already received.
