Succession Flashcards
Intestacy Rules
If surviving spouse/partner only; all to spouse/partner
Spouse + parents; Spouse (personal chattels + $155,000 and ⅔ residue) while parents (⅓ residue)
Spouse + children; Spouse (personal chattels + $155,000 and ⅓ residue) while children (⅔ residue)
Children only; all to children
Biddle v Pooley
Facts:
Biddle was the surviving partner of Pooley who had three young children
Pooley had 2 taiaha and 1 tewhatewha which were significant under tikanga
The issue was whether these were personal chattels
Held:
The court concluded that Mr Pooley’s parents were in the best position to care for the 2 taiaha and 1 tewhatewha in a way that was consistent with Tikanga
The 2 taiaha and 1 tewhatewha were not personal chattels
Banks v Goodfellow
Testamentary freedom is one of the most valuable rights but it is subject to the moral responsibility to provide for family
Testamentary capacity
- Understand the nature of the act and its effect
- The extend of the property of which they are disposing
- Appreciate the claims to which they ought to give effect
- No disorder of the mind must poison their affections or pervert their sense of right or prevent the exercise of their natural faculties
Requirements for Valid Will
1) Testator had testamentary capacity when making will
2) Voluntariness
3) Will complies with forma requirements (s 11 Wills Act)
- In writing
- Signed by testator (oe by another at the testator’s direction)
- In the presence of two witnesses who also signed the document in the testator’s presence and at the same time
Failure of Testamentary Gifts
Gifts will fail due to lack of testamentary capacity, breach of TTWMA, lapse, abatement (to pay debts) and ademption
Re Doorman
Facts:
Pauline was received a monthly income from a trust set up by her late husband from a specified bank account and she directed any money left over in the account to be distributed under his will
The money was transferred into another account at the same bank so it was no longer specified the will
Held:
The gift did not adem because it remained substantially the same
The only changes made was the account, it was the same funds and the account was still in the same bank, same branch, same name
Requirements for Testamentary Promises Claim
S 3 Requirements
1) Promise to make provision by will
a) Express or implied promise
b) Before, during or after services performed
2) Services to deceased
a) Tangible services; money, labour, domestic services etc.
b) Intangible services; companionship, taking deceased’s name etc.
3) Nexus; promise to reward services
4) Promise not (fully) fulfilled
Sutherland v Towle (UK)
Facts:
Sutherland provided housekeeping and nursing servies on the promise that Hastings said (she would be renumerated in the will) but this did not occur
Held:
There was a misunderstanding between the promise to pay for services by making testamentary provisions and performing services gratuitously in the hope of expectation of testamentary provisions
They misapplied Hallsbury and rejected her claim
Re Welch
Facts:
Albyn was the stepson of Welch and helped out with Welch’s business
Welch had promised to leave most of his estate of Albyn
Welch died without a will and his money was passed to his wife and siblings
Held:
Services must go beyond what might be expected in a normal relationship and services lovingly given are worth less than services contractually given
Due to this only a small quantum of $20,000 was awarded to Albyn
Who is eligible under the Family Protection Act?
Current Eligibility
- Spouse or civil union partner
- Surviving de facto partner
- Children (no age limit)
- Grandchildren living when deceased
- Stepchildren, if being maintained by the deceased
- Parents, if being maintained by deceased at death or if there is no surviving partner or child
Not eligible
- Separated de facto partners
- Whāngai
Williams v Aucutt
Facts:
Mother died leaving $50,000 to well-off daughter and remainder ($950,000) to less well off daughter
Held:
Support is given a wider definition to include sustaining and providing comfort (recognition of belonging to the family and of having been any important part of the overall life of the deceased)
10-15% is sufficient for this to be satisfied
Julian v Inia
Facts:
Mother’s estate comprising Māori land interests were left to only two of her seven surviving children
Held:
The mother had tikanga duties to consider all uri and the process must be tika
There was no evidence that she considered all uri and the effect of severing their connection to whenua
The process was not tika because there was no discussion with those affected
Remedy was to restore whakapapa connection to whenua Māori by providing for all children, though one child would receive more
