Succession Flashcards
Takamore v Clarke
2012, SC (NZ)
EXECUTORS RIGHTS
Mr Clarke was originally from NI but moved to Chch with his wife and family. He died at 26. His Will appointed wife as executor and did not specify where he wanted to be buried. His family took his body to NI to be buried and wife disputed this based on evidence that he wanted to be buried in ChCh.
Held that the executor (his wife) was entitled to decide where the body was buried. An executor upon death of the testator has full legal and equitable control and in relation to disposing of the body they have the ultimate power to make the decision but there is a duty to consult with family to reach a consensus. Where no consensus can be determined the majority held that the executor has the right to decide taking into account family wishes.
Biddle v Pooley
2017, HC (NZ)
INTESTATE SUCSESSION
Deceased had three taiaha that were kept at parents house ever since he moved out of home.
Issue was whether the taiga were property and part of the deceaseds estate or if they are accepted under tikanga as taonga and therefore not material property.
Held that they were Tonga and therefore not part of the estate.
Court used expert evidence to determine that taiaha were taonga and then held that it was for his parents who had been entrusted to be the guardians of the taonga to decide how they should be distributed and on what basis.
Ultimately held that the taonga was held on trust by the parents and they have obligation to continue caring for the items and to decide who they should go to showing respect for them.
Re Dorman
1994
ADEMPTION
Mrs Dorman’s Will stated that balance of account No 10327719 to be added to capital of Edward Dorman Trust. On death money was in a different account number of same Branch.
Held that the gift had no adeemed. A gift will be adeemed where there is a change in the thing bequeathed, unless the thing changed in name or form only and remained substantially the same.
The new account held only that money. The court considered the money as a fund and because they could still see it, they held that hesitantly the gift has not been adeemed.
Here the money only changed in name and substantially remained the same.
R v Welch
1990, PC (NZ)
TESTAMENTARY PROMISES
Mrs Welch died leaving life interest to Mr Welch which on his death would go to her son and Mr Welch’s step-son, Elvin. Most of her property was put solely into Mr Welch’s name upon survivorship and then when he died 6 weeks later intestate everything went to his siblings in the UK. Elvin claimed on behalf of mums estate his 1/2 share and for rest of Mr Welch’s estate upon TPA. Elvin was successful under both. Siblings appeal the quantum of TPA award.
Held that the quantum was not reasonable.
Quantum was reduced to 1/6 of Mr Welch’s estate because the services and nexus were weak.
Established that services lovingly given are worth less than services contractually given because there is higher threshold to prove services in a relationship which services are inherently expected. In a close family relationship there must be something extra.
Re Hilton
1997, (NZ)
FAMILY PROTECTION ACT
Deceased had been separated from wife for 18 months at time of death, but $1.4M (of the $1.6M estate) was left to his new partner.
Held that the surviving widow can make a claim against the estate (held that the step children and elderly mother cannot make claim).
Held that the MPA settlement (which was minimal) given the size of his estate did not discharge the deceased moral duty to provide for his separated wife.
Large estate was due to a substantial life insurance payout which he was paying into throughout their marriage.
She had supported him throughout majority of adult life.
Step children and mother were not being maintained by the deceased at the time of death (all financially independent) therefore they were not entitled.
Williams v Aucutt
2000, COA (NZ)
FAMILY PROTECTION ACT
Mother left 5% of estate to rich daughter (Susan) and 95% of her estate to daughter in worst financial position (Christine).
Held that the provision for Susan was not adequate for her proper maintenance and support.
Held that even though there was some provision left for Susan was in breach of a parents moral duty to recognize the importance of a child in their life, and the significant imbalance between daughters did not achieve this.
Merely being a member of family is a proper reason for the court to interfere with deceased’s testamentary freedom.
Which case set out the moral duty to provide for kindred in Will?
Banks v Goodfellow
