Father sought to cut daughter from inheritance by selling Wellington home

Author
Ben Leahy, NZ Herald,
Publish Date
Wed, 24 Feb 2021, 8:53PM
(Photo / Getty)
(Photo / Getty)

Father sought to cut daughter from inheritance by selling Wellington home

Author
Ben Leahy, NZ Herald,
Publish Date
Wed, 24 Feb 2021, 8:53PM

A father intending to sell a Wellington home to a developer and cut his daughter out of her inheritance has been temporarily halted by the Court of Appeal.

John Cowan earlier took sole ownership of the home at Queens Drive in Lyall Bay along with another in the small town of Carterton after his wife Marama Cowan died early last year, a recent Court of Appeal decision stated.

John then agreed to sell the home and its 819sq m block by Thursday, February 25, to a developer intent on building townhouses on the site.

However, not only had daughter Christine Marama Cowan "long lived at the property with her family", there was also dispute over its ownership, the court decision said.

It said that John Cowan had "acquired sole legal title" of the home "by survivorship" after his wife died.

However, he and his wife earlier entered into an agreement in 2002 in which John agreed he would "sells and gifts his share" of the "joint family home" at Lyall Bay to daughter Christine, the court said.

The was also evidence of John and wife Marama agreeing to a "relationship property settlement" last March, four days before her death.

This stated that while both properties were to pass into John's sole ownership under "the doctrine of survivorship", the Lyall Bay home was to be held in trust for the benefit of Christine and her brother.

The Carterton property would become John's own property.

John accepted the 2002 agreement had been made, but argued he entered it "at an unhappy time and without legal advice and no steps were ever taken to sell the property to Christine", the court said.

He also argued that while Christine made "financial contributions" to the home's costs, he had paid most of them and still did.

And while wife Marama had the 2019 agreement certified by a solicitor, John did not.

However, the court said there was evidence that John agreed to its terms orally in the presence of Marama and witnesses.

The Court of Appeal then said it took the view the 2002 and 2019 agreements were consistent.

"The marriage had been difficult and Marama was plainly looking to secure the interests of the children," it said.

"The record generally evidences Marama's continuing intention, and John's agreement, that the Lyall Bay property should go to Christine."

It said that while ownership was contestable, "it is plainly arguable that Christine is the beneficial owner".

Given that, the court allowed Christine and her brother to lodge a caveat over the property "protecting their claim to beneficial ownership".

However, they needed to provide an undertaking to John regarding "damages" arising from the agreement with the developer falling through should their claim fail, the court said.

It was also a condition that John be given sole occupancy to the Carterton property, the court said.