Long fight for eldest son's fair share

TONY WALL
Last updated 22:57 14/06/2014

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An elderly man who fought for two years to get a bigger share of his late 101-year-old mother's multimillion-dollar estate says his High Court victory should inspire other people who feel they have been unfairly treated in wills.

Clive Harwood, 75, lives in temporary accommodation next to his oyster processing shed in Russell, Bay of Islands, but hopes that with his $700,000 share of his mother's estate awarded by the courts, he will be able to buy a home.

A decades-old family feud meant a judge had to rule on the distribution of the estate of Violet Brain of Tauranga, worth $3 million.

She died in 2011 leaving a farm worth $2.25m, cash, shares and bonus bonds. Harwood received $180,000 and her other son, Alan Brain, was left most of the rest of the estate.

Violet Brain said in her will, written in 2002, that she made an unequal distribution because Harwood had "disowned his family name over 20 years ago after a severe disagreement with my late husband".

Alan Brain had contributed significantly to the maintenance and operation of the farm, and she felt the provisions she made for Harwood and his children were a "just and loving reflection of my obligations".

Harwood challenged the will in the Family Court in Tauranga, and Judge Annis Somerville ruled Violet Brain had "breached her moral duty" to make adequate provision for Harwood.

She had failed to take account of the fact Harwood made a significant contribution to the farm, including improvements he had made in the expectation he would inherit it and she wrongly took into account as "disentitling conduct" the fact that Harwood had changed his name, the judge said.

Somerville recognised there was no presumption of equality between children but considered the estate was large enough to enable further provision for Harwood. She awarded him $700,000.

Alan Brain appealed to the High Court but lost. The High Court judgment of Justice Gilbert said Harwood spent many years as a youth working on the family farm and as the older son had expected he would inherit it, until he fell out with his father in the early 1970s because of disagreements over how the farm should be run.

Harwood was eventually ordered off the farm and served with a trespass notice. In 1972 he filed legal proceedings against his parents for losses he claimed to have suffered as a result of being evicted.

He pursued this claim for about two years before dropping it because of the effect it was having on his mother.

Harwood was partially successful in reconciling with his parents but his relationship with his father, who died in 1991, was always strained.

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Harwood was described in the judgment as having "limited financial means" - living on superannuation and having to use the kitchen facilities in his oyster shed.

Harwood told the Sunday Star-Times the case had been costly and stressful but he hoped the rulings would provide an incentive for people who felt they had been cheated out of their rightful inheritance to take action.

"I meet people all the time - I was even talking to someone this morning who regretted they hadn't got hold of a decent barrister and done their thing.

"You can only do it according to the law - our strongest point was my age and care for me in my twilight years."

He said people writing out wills should also take note. "It's definitely something people should be aware of - don't be negligent in your writing."

- Sunday Star Times

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