Succession

Question 1

Structure of disposition of property

Answer 1

Default rules: intestacy rules
Modifications: Valid will
Applicable statutory claims apply in both scenarios

Question 2

Who cares for deceased property?

Answer 2

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)

Question 3

What covers intestate succession?

Answer 3

S77 - Administration Act 1969

Question 4

Priority (intestate succession)?

Answer 4

1) Surviving spouse
2) Deceased issue (children & descendants)
3) Deceased parents or closest family members.

Question 5

S77 - succession on intestacy split rules.

Answer 5

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.

Question 6

Maori Freehold land for intestacy….

Answer 6

NOT subject to Administration Act, is determined under TTWMA 1993.

Question 7

S 109 TTWMA:

Answer 7

Maori Freehold Land cannot pass to the deceased spouse; must remain within deceased bloodline (kin-group).

Question 8

S 109(AA):

Answer 8

Spouse is entitled to occupy and benefit from principle family home on MFL - does not get legal ownership, but instead a beneficial one.

Question 9

Are chattels subject to TTWMA?

Answer 9

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…

Question 10

Distinguish wills from gifts…

Answer 10

Intent and form:
Gifts require present intention, wills require expression to gift upon death - (trusts just require expression to gift in future)

Question 11

S 11 - Wills Act: Requirements for a will:

Answer 11

• 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

Question 12

S 14 - Wills Act: A will may be declared valid by Court if…..

Answer 12

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.

Question 13

Testamentary gifts can fail due to:

Answer 13

• Lack of capacity
• Gift has lapsed
• Gift has adeemed
• Breach of TTWMA
• Abatement (debts exceed assets)

Question 14

Testamentary Capacity case:

Answer 14

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

Question 15

Sound of mind defined:

Answer 15

• Must know what they are disposing
• Must know who they are disposing to

Question 16

Lapse of testamentary gift:

Answer 16

Where beneficiary dies before will is executed, gift lapses = goes into residue of estate.

Question 17

Abatement:

Answer 17

When testators debts exceed value of estate - creditors have priority and property will “abate”.

Question 18

Abatement order:

Answer 18

1) residue
2) general gifts of money
3) then specific gifts

Question 19

S 108 TTWMA:

Answer 19

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.

Question 20

Ademption:

Answer 20

Gift is no longer in the deceased estate…. Unless expressed in will otherwise, NO compensation for an adeemed gift. (E.g. Re Richards)

Question 21

Re Dorman (ademption):

Answer 21

• 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

Question 22

Claims that can override testamentary provisions (wills):

Answer 22

1) Property (Relationships) Act
2) Testamentary Promises Act
3) Family Protection Act
* See One Note

Question 23

S61 PRA - Two ways a surviving partner can retrieve parts of estate:

Answer 23

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.

Question 24

Other PRA section to note:

Answer 24

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)

Question 25

Testamentary Promises elements:

Answer 25

Section 3:
1) Work/services
2) Promise
3) Casual nexus
4) Lack of testamentary provision

Question 26

Re Welch

Answer 26

• 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.

Question 27

Persons entitled to claim under Family Protection Act 1955:

Answer 27

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.

Question 28

Re Hilton (FPA)

Answer 28

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.

Question 29

Williams v Aucutt (FPA)

Answer 29

“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.