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Acknowledgement of Debt, appointment and removal of trustees, Appointor; power of appointment, Beneficiaries, Capacity, Costs, Family Protection Act, High Court Rules

What do I want?

Bean v Bean is a an application to strike out a Family Protection Act 1955 (FPA) claim on the basis that it has no prospect of success.  The bar is set high for such a claim.  While any such claim will depend on its own facts, Bean v Bean is an interesting study of the procedural and tactical aspects of litigation and the need for clarity as to what is sought and the route taken to achieve this.

The claimant Cherie Bean alleged that her mother had failed to make adequate provision for her in her will, specifically her mother intended to give her an interest in a 10-acre block, but failed to make the necessary change to her will before she died.

In considering whether or not the pleading discloses “no reasonable basis for the application” Katz J  provides a useful summation of the requirements for FPA claims commenced in the High Court, which must be by way of statement of claim, compared with the Family Court (where the claim was filed) where the claim is by way of application in accordance with the Family Court rules (rather than a statement of claim).  As noted such applications can be “somewhat sparse” and are usually accompanied by a supporting affidavit setting out details of the facts relied on.

Whether the FPA claim is commenced in the High Court or the Family Court, the jurisdictional threshold is the same, that is adequate provision is not available for the “proper maintenance and support” of the applicant.

This is where the difficulties arose for Cherie as her primary complaint was not that her mother failed to make adequate provision for her, but that her mother’s will, which was prepared in haste, did not reflect her mother’s true testamentary intention.  Accordingly, it was divined Cherie’s primary aim was to persuade the Court to rewrite the will – not address a failing to make adequate provision.  A further difficulty was that Cherie did not plead any financial need that would require maintenance and support in excess of the more than one million dollars bequeathed to her.  In this regard, also see the decision in Talbot v Talbot where an FPA claim failed in circumstances of a bequest of greater than one million dollars

Also problematic for Cherie was that she obtained probate of the will that she later challenged as essentially not reflecting the will-maker’s wishes.  Whether Cherie might have a constructive trust claim was raised but not addressed as a separate claim would be required.

The decision provides useful guidance on the procedural aspects of FPA claims and the importance of being able to satisfy the legislated tests, rather than what might have been wished was the case.

Editor’s note: Whether there might be elements of a common intention constructive trust claim might also warrant consideration.

References:

  • Bean v Bean [2019] NZHC 20
  • Talbot v Talbot [2016] NZHC 2382
  • Talbot v Talbot [2017] NZHC 832

 

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