disposing of prop on death - testate succession

Question 1

testamentry freedom

Answer 1

legal principle that allows a person to freely decide how their assets will be distributed upon their death, typically through a will.

Question 2

how are gifts and wills distinguished

Answer 2

gifts require present intention where as wills are expressions to gift upon death and are not binding upon the testator

Question 3

who is the testator

Answer 3

A testator is a person who makes a valid will, specifying how their property and assets should be distributed after their death

Question 4

s11 wills act

Answer 4

**a will must be **
- in writing
- signed by the will maker or at another will makers discretion and in their presence
- in the presence of two or more witnesses
- witnesses signed in the presence of the will maker

Question 5

s14 wills act

Answer 5

a will may be declared valid by the HC if
- the will is in writing
- it appears to be a will
- it is satisfied the document is the deceased testamentry

Question 6

note on the relation of s14 wills act to s11

Answer 6

s14 of the act can still appply where the requirements of s11 are not met

Question 7

provisions made to people under wills (testamnetary gifts) can fail for several reasons for example

Answer 7

• lack of testmentray capacity
• lapse
• ademption
• breach of TTWMA
• Abatement

Question 8

what is a case relation to testamentary capacity

Answer 8

banks v goodfellow

Question 9

banks v goodfellow

Answer 9

Testamentary capacity means the testator must be of sound mind, knowing what they own and who will receive it.

Question 10

explain lapse
in failure of testmentary gifts

Answer 10

where a beneficiary dies before the testor, the gift lapes and property goes to the residue of estate

Question 11

explain abatement
in failure of testmentary gifts

Answer 11

When a testator’s debts exceed their estate’s value, creditors are paid first. Property is used to settle debts in this order: residue, general gifts, and then specific gifts.

Question 12

explain s108 TTMWA
in failure of testmentary gifts

Answer 12

Māori freehold land can only be transferred to those in the preferred class of alienees (PCAs). If not, it leads to partial intestacy, and the property goes to living relatives: children first, then siblings, then closest relations.

Question 13

explain ademption
in failure of testmentary gifts

Answer 13

If a gift has been disposed of by the deceased, it fails or adeems. Generally, there is no entitlement to compensation for adeemed gifts.

Question 14

re dorman

Answer 14

testor left funds to dorman in an acc with a speical name and it turned out it was a diffenrt bank acc with the same bank BUT this didnt meean that there was ademption as even tho it was a diffenrt account, the funds were clearly intended for him

Question 15

what is the law in re dorman

Answer 15

If the subject of a gift changes in name and form but not in substance, the gift will not adeem. This rule is independent of the testator’s intent and relies on the specific facts of the case.