The fundamental question in Swanwick v Bostock, which relates to claims pursuant to the Law Reform (Testamentary) Promises Act 1949, is whether any estate subject to the claim has been finally distributed.
Mr Swanwick, who died in 2008 and Mrs Swanwick who died in 2021 left their respective half interests in a farm to their four children. As set out by Associate Judge Johnston:
For Tim’s claim pursuant to the Law Reform (Testamentary) Promises Act it is necessary to determine whether there has been a final distribution of the estate.
In the first instance Associate Judge Johnston was of the view that Mr Swanwick’s estate had been distributed notwithstanding that “much of it remains held by Mr Bostock in his capacity as the trustee of Mr Swanwick’s will trust.”
On appeal, Associate Judge Johnston revisited this, finding that there may in fact be room for “debate as to when an estate may or may not be said to be finally distributed. Indeed, aspects of this case illustrate the point clearly. At several points it was necessary to assess whether Mr Swanwick’s personal representatives were acting in their capacities as executors or whether they were acting in their capacities as trustees.”
As stated at [27] and [28]:
The conclusion reached was that there is need for clarification of the law in this regard. Leave to appeal was granted. However, in a judgment issued 21 June 2024 the Court of Appeal dismissed the appeal.
References:
- Swanwick v Bostock [2023] NZHC 1600
- Swanwick v Bostock [Leave to Appeal] [2023] NZHC 2863
- Re Eagle (dec’d) HC Auckland M721/97, 21 November 1997
- Swanwick v Bostock [2024] NZCA 253
Matters of Trust 
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