Succession Flashcards
Structure of disposition of property
Default rules: intestacy rules
Modifications: Valid will
Applicable statutory claims apply in both scenarios
Who cares for deceased property?
Executor if: appointed by virtue of deceased will
Administrator if: appointed by High Court if no executor has been appointed
* legal and beneficial owner of deceased estate (not for their own benefit - fiduciary duties)
What covers intestate succession?
S77 - Administration Act 1969
Priority (intestate succession)?
1) Surviving spouse
2) Deceased issue (children & descendants)
3) Deceased parents or closest family members.
S77 - succession on intestacy split rules.
If deceased has:….
1) Only a spouse = all residue
2) Spouse and issue = 1/3 Spouse, 2/3 issues
3) Spouse & parents (no issue) = 2/3 Spouse, 1/3 Parents
4) Only issue = all residue.
Maori Freehold land for intestacy….
NOT subject to Administration Act, is determined under TTWMA 1993.
S 109 TTWMA:
Maori Freehold Land cannot pass to the deceased spouse; must remain within deceased bloodline (kin-group).
S 109(AA):
Spouse is entitled to occupy and benefit from principle family home on MFL - does not get legal ownership, but instead a beneficial one.
Are chattels subject to TTWMA?
Biddle v Poole:
If chattels are ‘taonga’, such as this case, they do not fall into deceased person estate. Take into account whether Tikanga was important to the deceased etc…
Distinguish wills from gifts…
Intent and form:
Gifts require present intention, wills require expression to gift upon death - (trusts just require expression to gift in future)
S 11 - Wills Act: Requirements for a will:
- In writing
- Signed by will-maker, or another at will makers discretion and presence.
- Presence of two or more witnesses
- Witnesses signed (at same time) in presence of will-maker
S 14 - Wills Act: A will may be declared valid by Court if…..
When s 11 aren’t met:
- Will is in writing;
- Characteristics of a will; and
- It is satisfied the document is the deceaseds testamentary intentions.
Testamentary gifts can fail due to:
- Lack of capacity
- Gift has lapsed
- Gift has adeemed
- Breach of TTWMA
- Abatement (debts exceed assets)
Testamentary Capacity case:
Banks v Goodfellow
- Testamentary freedom is subject to moral responsibility to provide for ones family.
- However, capacity is needed to exercise any freedom.
- Must be sound of mind
Sound of mind defined:
- Must know what they are disposing
- Must know who they are disposing to
Lapse of testamentary gift:
Where beneficiary dies before will is executed, gift lapses = goes into residue of estate.
Abatement:
When testators debts exceed value of estate - creditors have priority and property will “abate”.
Abatement order:
1) residue
2) general gifts of money
3) then specific gifts
S 108 TTWMA:
Maori Freehold land can only be disposed to those preferred class of alienees (PCA’s) - if not complied with this is “partial intestacy” - will be ordered to the living relatives instead.
Ademption:
Gift is no longer in the deceased estate…. Unless expressed in will otherwise, NO compensation for an adeemed gift. (E.g. Re Richards)
Re Dorman (ademption):
- Testator intended to leave money. in account to Dorman trust.
- Account specified was not account the money was in - STILL held it didn’t adeem.
- Where subject of gift changes only in name and form, BUT not in substance - gift WILL NOT adeem.
- Fact dependent
Claims that can override testamentary provisions (wills):
1) Property (Relationships) Act
2) Testamentary Promises Act
3) Family Protection Act
* See One Note
S61 PRA - Two ways a surviving partner can retrieve parts of estate:
A: Claim PRA - relationship property (s11 - Equal division of RP, but no default rules apply, unless other Act)
B: Give up PRA, rely on will or intestacy (default rules) - spouse has 6 months to decide before these are applied through default.
Other PRA section to note:
S76 - Claim under PRA revokes rights to claim under will or intestacy, unless otherwise. expressed in will.
S77 - Court may use judicial discretion upon election of division to allow a ‘specific gift’ to avoid injustice.
S78 - Surviving spouse has priority over; any beneficial interest, any order of Fam Pro Act or Test Pro Act and any debts. (except in abatement etc)
Testamentary Promises elements:
Section 3:
1) Work/services
2) Promise
3) Casual nexus
4) Lack of testamentary provision
Re Welch
- Woman dies, leaving her son to husband, husband inherits her property & raises stepson as his own. He dies - son claims he was promised inheritance.
- Services must go beyond normal expectation of a family expectations.
- Son struggled to show work/services went beyond son and father relationship.
- Small quantum awarded.
Persons entitled to claim under Family Protection Act 1955:
Section 3:
1) Spouse or civil union partner (if separated)
2) De factor partner (3 or more years - cannot be separated)
3) Children of deceased
4) Grandchildren born when deceased was alive.
5) Stepchildren - maintained wholly or partly by deceased
6) Parents - being maintained by deceased, or deceased has not spouse or child.
Re Hilton (FPA)
Factors to consider:
– Whether claimant was living with deceased prior to death
– Whether deceased provided financial support to claimant (incl. gifts or loans)
– Deceased reasons for not providing, intent of deceased to be balanced with rationale of Act.
– Contributions made by claimant to deceased wellbeing.
Williams v Aucutt (FPA)
“Maintenance and support” is wider than just providing for economic means required for each child; incl. moral and ethical considerations such as recognition for being apart of deceased life.
