A woman says her late father promised that, despite her receiving very little under his will, her mother would “level things up” between her and her siblings.

It was 40 years before that promise proved false as Lynette Gibson’s mother transferred her share of the family farm into a trust owned by Gibson’s brother in 2016.

Gibson became aware of the transaction in 2021 and, in 2022, took the matter to court.

The High Court and Court of Appeal both determined her claim was 45 years too late, however – given her father’s will was executed in 1976.

So, she sought leave to appeal to the Supreme Court, which recently released its judgment over her appeal bid and detailed the background to the case.

A family farm, and claims of a broken promise
In March 1976, Gibson’s father, Lewis Wait, died, and Gibson’s brother, Robert, had by then abandoned his university studies to run the family farm.

The farm was owned in two half shares by their parents, Lewis and Nellie.

Under Lewis’ will, Nellie received a life interest in his half share, and Robert was to receive that share on her death, subject to his paying Gibson and their sister, Gaylene, in equal shares – a sum equal to one-sixth of the value of the estate as at the date of Lewis’ death.

Lewis’ overriding objective was to make provision for the support and maintenance of Nellie, who was still relatively young, and his will provided for “comparatively little” to go to the two sisters.

Lewis had also settled the LH Wait Family Trust, with the beneficiaries his children and grandchildren, and in 2021, the trust made a capital distribution of $520,000 each to Gibson and her sister.

But in 2016, Nellie had sold her own half share in the farm to Robert’s family trust for $4.544 million plus GST, and most of the purchase price was forgiven by gift.

Gibson says she learned about the transaction in 2021 and realised her father’s promise, that Nellie would “level things up” between the three siblings, had proved false.

In August 2022, Gibson brought proceedings against the executor of Lewis’ estate, Simon Makgill, under the Family Protection Act 1955.

The High Court refused to extend time, finding the approximate 45-year delay was “inexcusable”.

She appealed to the Court of Appeal, which refused her appeal, and she then sought leave to appeal to the Supreme Court.

However, Chief Justice Helen Winkelmann and Justices Stephen Kós and Forrest Miller, did not “see any appearance of miscarriage”.

While the lower courts had accepted that Lewis arguably had breached moral duty, they also noted that Gibson was content not to initiate proceedings for so long.

“This was despite [Gibson] knowing or unreasonably overlooking the fact she was to receive very little under her father’s will and, on her case, knowing of the risk her mother would alienate her own half share of the farm or not follow through with the alleged promise made by Lewis.”

The Supreme Court noted that Gibson’s claim appeared to be premised more on her mother’s conduct and estate than her father’s, and the Court of Appeal had highlighted that “insofar as [Lewis] and [Gibson] assumed that [Nellie] would level up the distributions, it was an unsound assumption”.

“We see no error in these conclusions, and nor therefore in the concurrent findings below that the delay was inexcusable. It is therefore not necessary in the interests of justice to hear or determine the proposed appeal.”

She was ordered to pay the second respondents in the appeal, her siblings, one set of costs of $2500.

Hannah Bartlett is a Tauranga-based Open Justice reporter at NZME. She previously covered court and local government for the Nelson Mail, and before that was a radio reporter at Newstalk ZB.