Woman loses appeal over mother-in-law's Auckland home

The Court of Appeal dismissed the widow's caveat against the property her brother-in-law owned.

The Court of Appeal dismissed the widow's caveat against the property her brother-in-law owned.

A woman who lived rent-free at her mother-in-law's house for years has lost a bid to prove she has rights to the property.

Janthina Wakenshaw, also known as Jan, appealed a decision made in the High Court at Auckland to dismiss her claim over the property, in the west Auckland suburb of Bethell's Beach.

Wakenshaw lived there with her late husband, Norman, their two daughters, and her late mother-in-law, Mary, from about 1990 onwards. Norman died in 2014.

Mary Wakenshaw died in 2015, about eight months after gifting the property to her other son, Donald Wakenshaw.

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A Court of Appeal decision, released on Wednesday, said Jan Wakenshaw filed court papers following Mary's death, claiming she was a beneficiary of the property "under an implied or constructive trust".

She claimed her late husband helped his mother to buy out his father's shares in the property when they separated.

In return, Jan Wakenshaw said, "Mary acknowledged that she would hold the entire property on trust for Donald and Norman".

Jan claimed Mary repeatedly stated that, "even after her death, Jan and her daughters would never have to move from their home", the Court of Appeal judgment said.

She also said she and her late husband had paid for the property's upkeep and maintenance, including rates, and used their own funds to "extend and improve" the house.

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However, Donald Wakenshaw disputed those claims, saying he had no knowledge of a trust and it was "always clear" that the property belonged to his mother.

He said his mother funded most of the improvements to the house herself, and that she had paid the rates until 1996, when he took over the payments.

Jan Wakenshaw went to the Court of Appeal after the High Court dismissed her caveat, or claim, over the property.

But Justice Sarah Katz dismissed her appeal, finding Jan Wakenshaw had little evidence to show how much money she and Norman injected into Mary's acquisition of the property from her ex-husband.

She did have some evidence before the court to show contributions towards the property, but this was unsatisfactory, "vague and lacks detail", the judgment said.

There was also little evidence regarding how much Jan and Norman Wakenshaw had paid for maintenance, development and rates.

Justice Katz's decision also said it had been more than a year since the High Court's decision was made and Jan Wakenshaw had made no effort to provide the Court of Appeal with paperwork from her late husband's estate.

On that basis, Wakenshaw had no grounds to seek a claim either as an administrator of his estate, or as a prospective beneficiary of his estate, the judgment read.

"In our view it is not reasonably arguable on the evidence before us that Donald received the Property with notice that it was subject to a constructive trust in Jan's favour.

"Accordingly, although Jan may have a possible claim for breach of trust against Mary's estate, she has not satisfied us that she can maintain a caveat against the current registered proprietor of the property, Donald."

 - Stuff

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