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Definition
| P(R)A Family Court granted an extension for the distribution of the estate drawing on the factor relevant when granting an extension for a general application under the act including the length of the delay, the explanation for the delay, the substantive merits of the applicant�s claim, and any prejudices to the other party. |
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| P(R)A final distribution �refers to the point of time at which the executor of the deceased person, having completed the administration of the estate, becomes the trustee. It does not require an actual transfer of the assets. |
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| Re Leenman; Mulder v Mulder |
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| P(R)A An application was made under s69 to set aside the default option. The applicant was upset by the death and had also lost money when a finance company failed. However, the court held that none of the criteria in s69(2)(a) was satisfied and this where was no basis to set the chosen option aside. It is, however, important to note that the applicant�s lawyer had explained the implications of each option to her. |
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| P(R)A In this case the deceased had remarried in 1973 and died in 2002. Mrs Kinniburgh, who was the deceased�s daughter from the first marriage was left out of the will but successfully applied to have the Public Trustee appointed as an addition trustee of the estate under the Family Protection Act 1955. However, most of the estate passed to the second wife under the rule of survivorship. MrsK sought to have an action brought under Part 9 of the Property (Relationship) Act so that the survivorship rule would not apply. o Heath J held that the phrase �serious injustice� meant �injustice of a type that the Court cannot tolerate�the term requires a degree of injustice sufficient to require the Court to intervene. ? It was held that, for a number of reasons Mrs K did not meet this requirement including, among others, leave would interfere with the decision to hold property as joint tenants, that the Matrimonial Property Act 1963, which had allowed personal representatives to apply as a right, had been deliberately changed by Parliament |
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| P(R)A This case concerned an ex-spouse with two still dependent children as against the new de facto partner with no children. The CoA rejected the approach of Heath J, in their view it was unnecessary to go as far as to require circumstances which were �intolerable�. They went on to say that the situation in Williams was an example of one that Parliament must have had in mind when it allowed personal representatives to seek leave. It follows from the result of Whyman that leave under s88(2) should generally be forthcoming if a beneficiary of the estate or someone else with a genuine claim is otherwise going to miss out. |
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Definition
P(R)A In this case the deceased had left his entire estate to a family trust, under which his widow was not a beneficiary. The beneficiaries were the sons and grandchildren of the deceased and the widow made a claim under the Act. This claim was not contested and she was entitled to a half share. """"FPA""The 47-year-old claimant was the ex-nuptial daughter of the testator. The claimant was born and brought up in England by her mother and the mother's husband as their child. She did not learn that the testator was her biological father until she was aged 24. After that the claimant developed a close and affectionate relationship with the testator and they each visited one another a number of times before the testator died in March 2000. The estranged daughter recived nothing in the will. The Judge in the High Court concluded that the failure of the testator to make provision for his daughter in his will breached his moral duty to her. The Judge awarded further provision in the sum of $90,000. """CA HELD"" (1) The Judge was correct in concluding that the testator had breached his moral duty to his daughter in failing to make testamentary provision for her. The moral duty arose from the relationship built up between father and daughter following disclosure that the testator was the claimant's father. The disclosure would have been an emotional blow to the claimant and was itself a legitimate consideration in evaluating the existence and extent of the moral duty. By the time of the testator's death, the continuing communications and intermittent contact with his daughter had provided the foundation for a moral duty to provide for her.
(2) Taking into account the resources available to other family members, with a combined worth of relationship and trust property of almost $1.5m, the recognition of the moral duty owed to the claimant was not precluded by competing claims.
(3) The further provision order by the High Court Judge to repair the breach of moral duty was well in excess of what was necessary. While the claimant had demonstrated a need for both maintenance and support, insufficient weight had been given to the limited nature of the relationship between the testator and the claimant. It lacked any element of shared family life and the common endeavour and mutual sacrifice which are associated with it and was fundamentally different from the lifelong relationships which underpinned claims in more conventional circumstances. |
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| P(R)AIf a client wishes to avoid the the relationship property regime applying after death, then can consider s 21 agreeements. Agreeements are though open to challenge by surviving partner or personal representative |
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| FPA It is the duty of the Court, so far as is possible, to place itself in all respects in the position of the testator, and to consider whether or not, having regard to all existing facts and surrounding circumstances, the testator has been guilty of a manifest breach that moral duty which a just, but not a loving, husband or father owes towards his wife or towards his children, as the case may be. If the Court finds that the testator has been plainly guilty of a breach of such moral duty, then it is the duty of the Court to make such an order as appears sufficient, but not more than sufficient, to repair it. |
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Definition
| FPA The standard of a wise and just testator is an objective one and is influences by current social attitudes, which may change from time to time |
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| FPA This test for a wise and just testator requires a testator not to be influenced by acts or omissions of eligible claimants nor by any feelings of disappointment he or she may have concerning them to such an extent that he or she cannot give proper appreciation to their needs |
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| Editor of the [1964] NZLJ 313 |
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Definition
| FPA The court often says that it is not to make a new will for a testator when dealing with applications under the Family Protection Act, yet very often it immediately sets about doing so |
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| FPA While in earlier times the matters considered by the testator were largely economic, the modern view is that a wide range of moral and ethical issues are relevant which require the testator ? To weigh moral claims in a large sense, in which regard is had not only to the economic needs, but also to the merits and deserts of his dependants and to assess his corresponding obligation towards them after having regard to his means |
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| FPA Re-making the will: The inquiry is always as to the breach of moral duty anf that �only to that extent is the will to be disturbed�. Courts have tended to see the rule as no more than a statement of principle that the testator�s wishes, as they appeared in the will, should be retained so far as is possible |
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| FPA There has been acknowledgment that the very purpose of the Family Protection Act is to override a testator�s intention |
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| FPA The economic and ethical tests of moral duty in family protection claims historically looked at the �need� of the applicant |
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| FPA Salmond J divided cases into two classes: 1) Those where, owing to the smallness of the estate and to the nature of the testamentary dispositions, the applicant is competing with other persons who also have a moral claim upon the testator � any provision that the Court made in favour of the applicant had to be made at the expense of some other person or persons to whom the testator owed a moral duty of support. In these cases all the Court can do is to see that the available means of the testator are justly divided between the persons having moral claims on him in due proportion to the relative urgency of those claims; and 2. Larger estates where the complaint is the failure of the testator to make out of the abundance of his resources a provision sufficient for the proper maintenance of the claimant. This involves the Court undertaking the more difficult function of determining the absolute scope and limit of the moral duty to the claimant. It is uncommon to see judges draw this dichotomy in modern cases. |
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Definition
| the family protection legislation was not intended to favour only people of modest means and in necessitous circumstances. What is adequate, what is proper, and what is needed for maintenance and support are all relevant questions which the Court in its discretion must determine in the circumstances of the particular case having regard to the size of the estate and competing claims. """"Richardson J said that Moral duty must be assessed in terms of current social attitudes as to what is right and proper. |
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| FPA The need of an applicant, or rather his or her needs cannot be considered in vacuo. What has to be assessed are the merits of the claim having regard to the applicant�s circumstances as at the date of the death of the testator; relations between the testator and the applicant in the past; and the extent of his estate and the strengths of other claims. """"Matters affecting quantum of award, Competing claims, no matter how poor the economic circumstances of an applicant may be, if there are beneficiaries under the deceased�s will to whom a moral duty is also owed by the deceased the Court will take this into account,the maximum the widow might have been entitled to if she were an applicant should not be the minimum she should be allowed to retain when faced with a competing claim |
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| FPA Re Harrison was not to be taken as giving carte blanche to the Court to redress unfair situations. It confirmed that more generous awards were justifiable in large estates, but where the court was dealing with small estates what had to be demonstrated was that the applicant has a need �in a broad sense� of maintenance and support |
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Definition
| FPA The test is whether adequate provision has been made for the proper maintenance and support of the claimant. �Support� is an additional and wider term than �maintenance�. In using the composite expression, and requiring �proper� maintenance and support, the legislation recognises that moral and ethical considerations are to be taken into account in determining the scope of the duty. �Support� is used in its wider dictionary sense of �Sustaining. Providing comfort�. A child�s path through life is supported not simply by financial provision to meet economic needs and contingencies but also by recognition of belonging to the family and having been an important part of overall life of the deceased. Just what provision will constitute proper support in this latter respect is a matter of judgement in all the circumstances of the particular case. """the size of the estate is an important consideration when determining the quantum of the award. """"They thought that the recommendations of the law commission went too far in opposition to claims by adult children, but noted there are pointers to concerns that some orders in recent years may have been out of line with current social attitudes to testamentary freedom relative to claims by adult children. |
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| FPA the claim in this case was by a widow whose husband dies in 1942. Her own financial position deteriorated considerably as a result of the Second World War and post-war conditions. On the other hand the value of the deceased�s estate had increased considerably. A majority of the HC of Australia considered that the testator could not have foreseen the vast increase in the value of the estate and that, looking at the circumstances as they existed at his death, it was impossible to say that the provision made for the widow amounted to a breach of moral duty. |
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| FPA, Matters affecting quantum of award, Economic considerations: first, account was taken of the comfortable standard of living provided to a widow by her husband who had been generous to her. This gave rise to a � paramount claim to be provided for in a way which would enable her to continue living in much the same manner as she has done when the testator was alive.� Secondly, as the deceased had chosen in his will to leave his widow with a fixed annuity the Court held that it was appropriate appropriately """"Past standard of living ? the standard of living that a testator has provided for his family should, if possible, be maintained after his or her death. |
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| FPA, Matters affecting quantum of award, Other dependants: ? the position of an applicant who has responsibility for the maintenance of children or other dependants is different from that of an applicant without such dependants""""in many cases it has been recognised that the assistance an applicant has previously given towards the building up of the estate of the deceased person, particularly where that assistance has meant that the applicant has forgone opportunities to build up their own estate, is a most relevant circumstance |
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| FPA, Matters affecting quantum of award, Competing claims, no matter how poor the economic circumstances of an applicant may be, if there are beneficiaries under the deceased�s will to whom a moral duty is also owed by the deceased the Court will take this into account "" The Court described the problem as one of �distributive justice�. In the case of a widow, at least, the paramountcy that is seen as attaching to her moral claim |
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| FPA, Matters affecting quantum of award """ If an applicant is comfortably situated financially and the estate is a modest one, the rendering of assistance to the testator may not be sufficient to justify an award in favour of the applicant |
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| FPA, Matters affecting quantum of award""""Estate left to stranger or to charity""""A bequest to charity is very fitting in the case of the testator who has ample means and can make such bequest without inflicting hardship on his own family, but when hardship is inflicted by an undue portion of a testator�s estate being disposed of in this manner the Court, I think, will not feel at all hampered in making such provision as is considered fitting for the maintenance and support of those morally entitled to the testator�s bounty. |
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| FPA, Matters affecting quantum of award""" Neglect of applicant ? where a testator has been in a position during life to provide better for an applicant than has in fact been done, the Courts have been inclined to treat the moral claim of the applicant as enhanced by a duty on the part of the testator to make up to the applicant for those past neglects |
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| FPA, Matters affecting quantum of award"""Specific adverse factors � if an applicant�s financial position has been affected by the applicant�s extravagance, lack of thrift or reckless dealings with their own funds, the moral claim will be reduced |
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| FPA Reasons for claims by adult children: Where there is a second marriage it is difficult for adult children from a first marriage to appreciate the commitment their parent has made to a new partner. Adult children tend to regard themselves as prior claimants as they have known their parent for all their lives and were already adults when he re-partnered. They have a sentimental attachment to belongings that were part of their life together and to which their father had an attachment. In most cases, if their parents had remained married and their father had died first, they would not have expected to inherit personal items until after their mother had died. Where there is a second marriage they can no longer assume that the new partner will leave property to them in her will or whether she will consider she has more compelling obligations to others such as her own children. """"Claims by spouse or partner There is a moral duty requiring securiy of housing and opportunity to live a much the same standar of living. |
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| Law Commission Report �Succession Law: A Succession (Adjustment) Act� (1997) |
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Definition
| The test of a will-maker�s �moral duty� to adult children has never been expressly approved by Parliament as a test for entitlement. The test assumes that there is general acceptance of the exact content of a will-maker�s moral duty to adult children. No social inquiry the Commission knows about supports this assumption. The test also makes a second incorrect assumption: that New Zealand society is culturally and ethnically homogenous. This assumption of homogeneity may make it difficult for will-makers and their families to have their different ethnic and cultural values recognised, respected and protected. The consequences of the absence of any norm of this kind are that a deceased�s perception of his or her moral duty is overruled by a particular judge�s assessment of current social norms. This assessment is necessarily based on the judge�s personal sense of the fitness of things, shaped by such factors as religious and cultural background, family history and attitudes, and personal experiences. The law has become unclear in its purposes. Failure by the courts to articulate (beyond the obscure concept of moral duty) why precisely they are altering a will-maker�s arrangements results in a situation where wills are varied according to the subjective values of the particular judge who chances to deal with the matter. This makes it difficult to assess whether the court�s distribution is more commendable than the will-maker�s. There are appreciable differences in the awards made to adult children. These differences mean that conscientious will-makers find it hard to know and comply with the requirements of the law, and bring the law into disrepute. Even though it is not clear now (if it ever was) that the reasons for court intervention are understood or widely accepted by the wide variety of communities and families in New Zealand, claims by adult children succeed in a very high percentage of cases. |
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| The testatrix left three-quarters of her estate, worth approximately $800,000, to one son (G) and one-quarter of the estate to her other son, the appellant (P). The Family Court upheld P�s claim of a breach of moral duty by the testatrix and, after providing for a sum of $75,000 to be paid to P�s daughter, the only grandchild of the testatrix, divided the estate equally between the two brothers. On appeal to the High Court, the Court left the grandchild�s claim undisturbed, but allowed G�s appeal and reinstated the three-quarters of the estate award to him. ""CA HELD"" 1. The law was clear that the award to the claimant should be no more that is necessary to remedy the failure. Conservative meant simply �no more than the minimum necessary to make the adequate provision. 2. The call for conservatism also applied to the assessment of the issue as to whether adequate compensation has been made; Again a mere perception of unfairness as not a good enough reason to disturb the will. 3. A claim on financial need will also be judged conservatively. 4. Events subsequent to the death of the testator can only be taken into account in assessing the appropriate remedy if a breach of moral duty (assessed as at the date of death) is established |
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| The deceased died in 1996. She divided her estate unequally between her two adult married daughters. The respondent elder daughter, aged 59 at the date of the testatrix's death, was married to a successful businessman and owned assets with her husband worth about $1 million. The appellant younger daughter, aged 49, was much less well off with a net worth of under $80,000. The testatrix left 95 per cent of her estate, worth $1 million by the date of the High Court hearing, to the appellant and 5 per cent to the respondent. She recorded in her will that her reason for the disparity was not because of any lack of affection for the respondent but because she considered that the appellant's financial position was much worse off than that of the respondent. HC awarded 25% to the respondent. CA changed it to somewhere in between. The test was whether adequate provision has been made for the proper maintenance and support of the claimant.The bequest of approximately 5 per cent of the estate was not adequate provision. However a legacy designed to serve the limited purpose of supplementing the recognition the respondent's family belonging already provided under the will would have to be of a relatively moderate amount and was assessed at $50,000.The telling factor in the consideration of what was adequate provision was the deceased's apparent misunderstanding about the size of her estate. The Court's power did not extend to re-writing a will because of a perception that it was unfair. |
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| Auckland City Mission v Brown |
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Definition
| The testator died leaving an estate worth approximately $4.6m. He had one surviving adult daughter by a marriage which had been dissolved in 1975. She in turn married and had three children. The testator made substantial bequests to a female friend with whom he had a close relationship for 23 years and to her daughter. There was a specific bequest to his daughter, considerably smaller than the bequest to the female friend, and the remainder of the estate, a substantial amount, was left to three charities. There was evidence that the testator did not have a high opinion of his son-in-law or of the business acumen of the couple. The daughter applied under the Family Protection Act arguing that there had been a breach of moral duty to her. HELD 1. Orders under the Family Protection Act had to be limited to the amount required to repair the breach of moral duty to the offspring of the deceased and a more conservative approach than in the past was justified. A wise and just testator would have provided them with a better home clear of debt together with a sum to supplement their income and provide a contingency fund. A sum equivalent to just under 20 per cent of the net estate would be ordered to be provided for the daughter, the cost being borne by the residuary estate 2. It had been entirely proper for the charities to oppose the applications, draw the attention of the Court to their work and the benefits for the public they could achieve and test the claims, particularly as there was no other beneficiary defending the will and the trustee was also the accountant for the claimant�s business |
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| Rather, my point is that what is proper maintenance and support in any particular case ultimately is a matter of judgment, and not of some mathematical or scientific calculation. per Wild J |
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The testatrix and mother of the plaintiff died in January 2001 leaving an estate valued at just over $2 m. She left the plaintiff a legacy of $200,000, with the rest of the estate left to her only other child, the plaintiff's brother. The plaintiff had been bankrupted in 1989. Through successful property transactions, the plaintiff built up the assets of the trust, so that it now had net assets of about $3 m. However the plaintiff had no assets of her own and had survived mainly through receipt of social welfare benefits since her child was born in 1988.The relationship between the plaintiff and her mother deteriorated from 1992 onwards to the extent that the mother found it necessary to obtain protection orders against the plaintiff.
The plaintiff argued that the legacy to her of $200,000 was not an adequate discharge of the mother�s moral duty to provide for her daughter having regard to the problems that had befallen her, her complete lack of any personal assets, the size of the estate and the lack of any competing need for further provision for her brother. HELD
1 In all the unusual circumstances of this case, the testatrix had sufficiently discharged her moral duty to her daughter by the legacy of $200,000.
2 Whilst a legacy of 10 per cent of an estate worth just over $2 m would not ordinarily be regarded as sufficient provision for a daughter with no personal assets and whose only income was a benefit, this was no ordinary case. The plaintiff�s relationship with her mother had been dysfunctional or non-existent for many years; the plaintiff had elected to establish a trust for the benefit of her daughter alone while she had avoided acquiring any assets or deriving any income in her own name; and she had not contributed in any way to her mother�s estate nor to her care, comfort or support over the years. |
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| The Court�s task was to identify a figure that represented an acknowledgment of the extent of the breach of moral duty. In this case, the testatrix�s duty was not to provide for her son but to acknowledge his membership of the family, his role as a son in the good times which were for longer than the bad, and his very significant contribution to the family company and the family fortunes. The Court�s task was not to step into the testator�s shoes and award the share of the estate that it thinks would be fair. It was to remedy the breach. |
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| Ms R, the plaintiff, was the deceased's only daughter. When Ms R was a young child, the deceased and Ms R's mother separated. The deceased married Mrs L, the main beneficiary of his estate, in 1970. The deceased and Mrs L had separated some years prior to his death but maintained a friendly relationship. Mrs R an her husband purchsed a property with the deceased who contributed a little less than half and lived with them. they later bought out his share for maket rate of 50% of the property even though he contributed less. He moved out and lived with Mrs L who cared for him up to his death. He made many will which made provisions of less for his daughter than any of his many previous wills. R was awarded 20% and L the residuary of his estate. R brought a claim that he had breach his moral duty in failing to give more than 1/5th """" HELD"""" 1. The provision of 20 per cent of the deceased's estate to the deceased's daughter did not adequately recognise her status as the deceased's only child and the important part that she played in his life where his earlier wills had.The Court could only interfere with the deceased's will to the extent necessary to remedy the breach. An equal division of the deceased's estate between the daughter and Mrs L remedied the breach of moral duty. 2. The proposition that the deceased's duty to provide for Mrs L was not great as she had already received her share of the matrimonial property did not apply here for two reasons. First, the separation between the deceased and Mrs L was unusual in the degree of ongoing contact and support they offered each other. Secondly, the cases relied on for the proposition related to plaintiffs who were separated widows, rather than major beneficiaries |
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| In larger estates and in estates where there is insufficient competition from other claimants to require the Court to apportion fairly an inadequate fund, the widow should be provided with an anxiety-free standard of living of an appropriate kind |
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| Where a testator has made provision for his widow by way of life interest and the widow has adequate personal resources of her own it is unlikely that the court will substitute for that limited interest a lump sum award of the whole estate. The courts have recognised however that a life or other limited interest may require to be supplemented by a lump sum for special needs |
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| If the provision for the widow is limited to cease on remarriage the Court will be more ready to intervene unless the widow�s reaources are clearly adequate for her needs in a broad sense |
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| Generally speaking, where there is a conflict between the second wife and the only child of an earlier marriage, a life interest is a reasonable basis because the capital ultimately is preserved for the child and is not unfairly asses on to strangers in blood. |
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| The length of the second or subsequent marriage is a relevant facto in assessing the strength of the moral duty owed to the widow by the testator. in this case the estate was not a large one, the deceased had left nine children of his first marriage and there were no children of the second marriage and the deceased�s will showed evidence of having been carefully thought out. It provided something less than the standard of living for the widow had enjoyed during her husband�s life time but having regard to what she was able to earn herself made sufficient provision to maintain her in the standard of life which both the deceased and she might reasonably expected her to have enjoyed after his death. the court rejected an argument that the claims of the children by the first marriage should be disregarded |
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| Second Marriage, relevant factors: 1. The fact that the marriage is a second or subsequent marriage does not, of itself, lessen the moral duty owed by the testator towards the widow. 2. Where there are no competing claims or where the estate is sufficiently large so that all claims can be met in full, there seems no reason why a lump sum may not be awarded. 3. Where there is competition with children of a prior marriage the Court should, in general, limit the award to the widow to the provision of a periodical sum supplemented by a nest egg. 4. Although the length of the second marriage may be only one of the general factors to be considered, the fact that the marriage has been very short must inevitably be a weighty factor towards a reduction of the moral duty. 5. Where the estate is modest, the primary moral obligation owed to the second wife may mean that it is not possible to make any immediate provision for the children of the first marriage |
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| Where the separation occurs entirely as a result of the fault of the spouse who seeks to bring a claim under the Act, the circumstances may be such as to preclude a claim on the grounds of �disentitling� behaviour, but the trend of the authority is not to refuse relief on this ground unless the circumstances are exceptional. |
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| The testator had married twice. By his first marriage the testator had one son and the latter had two children, both of whom at the time of the proceedings were under 20 years of age. The appellants were children of the testator's second marriage. The son of the first marriage had not made a financial success of his life and had applied for further provision out of the testator's estate for himself and for his children, they being the testator's grandchildren. The contest was virtually between the children of the second marriage and the testator's grandchildren. In the court below provision was made for such of the grandchildren who should be living at the date of death of the testator's widow and should attain the age of 24 years, with a substitutionary gift in favour of the grandchildren's children, viz the testator's great grandchildren |
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| a remedy to disappointed promisees in some cases in which the alleged promises did not go so far as to bind the deceased in contract. The promises in these cases are in fact now given statutory force as if they were contracts, the promisees being given, however, only limited statutory remedies. Per Turner P. |
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| LR(TP)A 4 basic elements 1. That there were work or services performed during the deceased lifetime 2. A promise of testamentary provision 3. There is a nexus between a work and the promise 4. Reasonable provision in the will has not been made. Here the S couple were unable to have children and had a close relationship with the A family and their children. After the death of Mrs S, Mr s invested in property with Mr A to help him out. The nephew of Mr S visited from Scotlnd and they became close with the result that all of the estate including the shares in the property with Mr A went to the nephew and niece back in Scotland. The A family had clear expectations that Mr S would leave his shares in the property to the to A family sons.""""HELD The High Court determined that a testamentary promise had been made and that there was a nexus between the promise and services rendered. The Court vested in the three respondents, as tenants in common in equal shares, certain shares in the farming company. ""CA The benefits received by Sammy exceeded the benefits received by the respondents; the unremunerated balance required awards. The Judge was right to see this case as going beyond �ordinary� love and affection within an extended family, in some respects. Without being pejorative, this was clearly a case in which Sammy acquired a �surrogate� family. The benefits of that to him increased steadily with the passage of the years as his wife became ill and then died, and during his own declining years as a widower. The Atkinsons had their own family. But without his own family, Sammy lacked that kind of solidarity in his life. The justification for an award principally rested on this element. |
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| LR(TP)A It is plain that the word services�can and often does embrace in ordinary speech something more than those acts which are performed under a master�s contract of service with his servant or of services with a professional man. In this case the plaintiff and the deceased were beneficially entitled to a house property in the estate of their deceased mother. The deceased wished to continue to live in the house, and the plaintiff, after being requested to do so by the deceased, agreed to disclaim interest in the house in return for which the deceased undertook to leave the house by his will to the plaintiff. McCarthy J stated that what the plaintiff did for the deceased could fairly be included in the term services. |
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| LR(TP)A -Domestic services such as regular visits, cooking, personal care, cleaning, gifts of fresh food. Assistance with housework . In regards to the nexus between the work and the promise, specifically te work having to be done by the person makig the claim, this case left the issue somewhat unclear. Services were rendered to the deceased by a friend and her two sons. There was evidence that promises had been made to the friend to reward her and the two sons but no evidence of a promise directly to the sons. By obiter, Hillyer J made the observation that there do not seem to be any words in s3 of the Act that require the promise to be made to the person who provided the services as long as it was a promise to reward for those services. |
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| LR(TP)A assisting an invalid Neighbour with personal washing and changing of clothing. In regards to the promise it was said that: the word promise now being a define term, does include unilateral declarations by a deceased person of their intention to reward others for services or work performed by them by the making of a testamentary provision in their favour, and it is not necessary that the promise should amount to a contractual undertaking to be within the section. """" The plaintiff and his wife provided the deceased with food and attention in return for the right to occupy a residence free of rent. It was found that the principle motivation for this action was that the deceased had led the plaintiff to believe that they were father and son, and as a result accepted the obligation of looking after the deceased. The Court held that relief should not be refused simply on the ground that the claimant may have been motivated by a more laudable consideration. |
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| LR(TP)A - Working on and managing the deceased�s farm |
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| LR(TP)A Forgoing the right to take a Family Protection claim against the deceased�s mother�s estate held to be a service to the sister |
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| LR(TP)A Agreement to change name is sufficient for a claim as support. - If a promise has been made and services rendered or performed, and subsequently the deceased repudiates the promise, as a result of which the claimant terminates further services or work, that termination does not necessarily defeat the claimants claim under the Act |
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| LR(TP)A The applicants were neighbours and distant relatives of the deceased. The deceased had attempted to make a will in 1995 vesting assets (two farms) in the applicants, but the will was held to be invalid due to lack of testamentary capacity. There was evidence that the deceased had promised the applicant�s parents to leave one farm to their applicant�s son and the other to their applicant daughter. There was also evidence of services such as companionship, affection and emotional support. The deceased was motivated by gratitude for what the children and the parents had done for him. He has in his lifetime given the children money, chattels and services. The court considered the competing moral claims of the intestacy beneficiaries. These not only included kinship and their contact with the deceased but also the added feature of family and a personal link with the land which they could justifiably regard as part of their heritage. It was not appropriate to give full effect to the promise. One farm was vested in the applicants; the other passed on intestacy to the beneficiaries. An added feature of this case is that it was held that although the promise was only communicated to the parents of the applicants this, in the circumstances, was sufficient communication. The case also discussed the question of how services or work which exceed the normal expectations of family life qualify under the Act. Also per Blanchard J: it would be repugnant if the fact that the services or work were performed out of of a generous spirit and not for mercenary reasons or in the hope of a reward should count against claimants by way of depriving them of a claim or devaluing it. """"It is clear that some nexus or linkage is required between the services and the promise. But s3(1) does not say that the services or work must come from or be done by the claimant. The CoA thought that the section would cover a situation where the deceased indicated to a parent an intention of making a testamentary provision for that person�s child as a reward for something done or to be done by the parent. This applies even where the child may have been unaware of the promise.""""In valuing the promise reciprocal benefits received by the claimant must be brought into account and "" in considering this netting off effect for benefits reviewed by a claimant, benefits received by the family of the claimant may also have to be taken into account. |
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| LR(TP)A The deceased (s) had no chldren or grandchildren however there ere 72 distant relatives who wold benefit from the intestacy, including the plaintiff, R. R had visited S regularly during the ast 7 years of her life and helped her out. S was later placed in residential care and The public trustee appointed manager of S's property. S asked R to make an appointment with the Public Trustee to amke will so tht she could give R a few dollars. S told the employee of the Public Trust office that she wanted R to have 1/6th of her estate, however, the employee, as well as the matron of the resthome doubted R's testamentary capacity. Opinions from the Doctors and a nurse indicated that S did in fact have testamentary capacity at the time. R commenced proceedings claiming relief under the LR(TP)A and negligence against the Public Trust. |
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| LR(TP)A When John Coyne died in 1984 he left a life interest in his estate to the testator (his surviving second wife) and following her death his remaining estate to his four children equally. The bulk of his assets however comprised property owned jointly with the testator, and which passed to her by survivorship. Shortly after John Coyne�s death, the testator wrote to the applicant noting his unhappiness with the terms of his father�s will and the uncertainty as to the disposal of her property. The testator assured him that he would figure in her will in equal proportions to the other children with the exception of her private money. However, in her last will the applicant recieved far less than the promised proportion and commenced proceedings under the LR(TP)A. The respondents argued that no nexus had been pleaded nor was identifiable in the pleading between the claimed services and the claimed promise. In the circumstances of this family, the burying of grievances and the maintenance of harmonious relationships might well be regarded as conduct beyond the normal. Similarly, there was clear evidence from which a Court might infer that the applicant had consciously waived an opportunity to challenge his father�s will. """"HELD The applicant�s application did indirectly, but sufficiently, plead a nexus between the alleged services and the alleged promise. The nexus or connection between the promise and the claimed services lay in the letter from the testator to the applicant in which she gave assurance to the applicant because of his insecurity about her own testamentary provisions. That was a sufficiently clear pleading of a connection or link between the promise and the services |
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| LR(TP)A Ths S family and Mr and Mrs M were long time friends. Mr S did some plumbing work for the Ms free of charge over the years. The Ms considered the children of the S family as surrogate children as they never had any of their on and they attended birthdays and weddings for the S children. One f the children was namde after Mr M. Mrs M died and then Mr Ms health declined with a plan that he would mov to a care facility near the S family, however, Mr M died before this could eventuate and died intestate. There is evidence to suggest that from 73 onwards Mr and Mrs M on a number of occasions promised to leave the estate to the S children, because of the special nature of the relationship with them as surrogate children. """"HELD. The Court was satisfied that the late Mr M made promises to leave the estate to the S children in the context of work and services, some of which had been provided by the time the first promise was made. At that point, the nature of the work and services was more of a concrete nature, having regard to the actual assistance provided by Mr S Senior. However, the catalyst for the promise appeared to have been after the birth and naming of I, after the late Mr M. It appeared to have been a significant event for Mr and Mrs M and was therefore evidence of a link between the work and services and the promise. |
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| LR(TP)A Two children who were adopted out undertook proceedings against their genetic mother under the Testamentary Promises (Law Reform) Act 1949. They alleged that the deceased made promises to their respective adoptive parents that each would benefit under her will in exchange for specified services. The alleged services were, in general terms, the retention of names, provision of information and in J�s case, maintaining contact between him and the deceased. There was no reason in principle why the provision of information itself could not in appropriate circumstances qualify as a service, even though such occasions were rare. Bearing in mind the remedial nature of the Act, the provision of information by P�s adoptive mother of P�s intended name and her adoptive father�s name and address in direct response to a request from the deceased in circumstances where the adoptive mother was not obliged to do so and where that information was of value to the deceased, amounted to a service of a type that qualified under s 3 of the Act |
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LR(TP)A. A stepson received at first instance a significant award for services which included his assuming and performing the role of a son. In the CoA it was found that the evidence pointed to noting more than a normal family relationship between a stepfather and stepson who had the good fortune to get on well with each other and that there had been a reasonable balance of benefits and personal satisfaction on each side.
In this case the deceased dies intestate and his estate was distributed among his eight brothers and sisters. The claim was made by the stepson who was not eligible to bring a claim under the Family Protection Act 1955.
The CoA pointed out that the Act is not concerned with the moral duty to make proper provision for dependant. |
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| LR(TP)A. The plaintiff cared for her husband even when their relationship was in strain, however the evidence was insufficient to establish that the deceased had promised the plaintiff that he would leave her his interest in the jointly owned property. Even if such a promise had been made, the Court was not satisfied that the services rendered by the plaintiff, which could not be said to be outside the expectations of a caring spouse, could justify the deceased leaving her the entire property |
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| LR(TP)A. William J expressed difficulty with the concept that work or services lovingly given should be worth less than those contractually given. The Court considered that some discount factor must be applied where services included those of a family type or there had been some mutual or reciprocal benefits. "" This view was strongly rejected in Re Fagan |
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| LR(TP)A. The deceased was alleged to have said that she would arrange with her son that on her death and on the winding up of her estate the claimant would be properly or suitably rewarded. In the CoA it was found that the words used b the deceased and the promise made were sufficient to found the claim. To give the Act a narrow interpretation would deprive the section of the benefit it was intended to achieve when enacted |
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| Heathwaite v NZ Insurance Co |
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| LR(TP)A. In the deceased�s will the claimant was left a life interest. He claimed that the deceased had promised to leave the whole of her estate to him. The question that had to be asked by the court was whether the deceased should have realised that the plaintiff understood her promises in the sense which he understood them. The burden of proof is a heavy one resting upon the claimant, but in this case it was found that such a burden was discharged |
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| LR(TP)A. the Court held that claims should be dealt with in a similar manner to claims made against a person after his death; that such claims should be regarded with some caution and suspicion |
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| McMillan v New Zealand Insurance |
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| LR(TP)A. the deceased promised to leave a life interest in certain land to a grandson who had rendered services to the deceased with the remainder passing to the daughters of the grandson. The deceased died interstate and, in an action brought by the grandson, the question arose as to whether his daughters were entitled to have an order made in their favour to give effect to that part of the promise that related to them. It was held that the Court could not make such an order since the promise had not been made to them and they had not rendered any services. |
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| LR(TP)A. resolved the issue of work being done by someone other than the person to whom the promise was made. In the absence of any specific words in the Act requiring direct communication Nicholson J could see no reason in law for interpreting the Act in a restricted way to impose that limitation |
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| LR(TP)A. Unless the circumstances are such that what was said to others was either in a family context or made in circumstances where the promisor might reasonably have treated the provider of the services as a proxy for the promise the Court should not extend the ambit of the Act to embrace promises made to third parties where knowledge of that promise never reached the claimant |
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| LR(TP)A. the court found that services and work were rendered without any expectation of a reward and the promise was made by the deceased out of gratitude for what was had been done |
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| LR(TP)A. A claim can succeed only to the extent of the unremunerated balance. If intangible services were to be wholly matched by reciprocal benefits, there would be no balance to claim |
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| LR(TP)A. It was held that not all remuneration needed to be taken into account but only such remuneration as could fairly be considered to be something that represented in while of in part payment or gifts in recognition of the services for which the remuneration was promised |
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