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Phillips v Heremaia relates to two sisters engaged in litigation with respect to their father’s estate. Although the matter settled at a judicial settlement conference not agreement was reached with respect to costs, which are the subject of this judgment. The following at [3] and [4] sets the tone for the decision: Rule 15.23 of the … Continue reading
Re Bleeker relates to an application by the trustees of the Makikihi Library Hall Trust (the Trust) for orders land known as the Makikihi Hall, vest in them. The original trustees of the Trust were Mr Crowe who died in 2005 and Mr Fowler who died in 2015. When powers of appointment are derived through a will … Continue reading
Alan O’Donoghue (Alan) and Marc Comia (Marc) married in 2016. They subsequently separated and later entered into a settlement agreement dated 6 April 2020 (the Agreement) recording the division of relationship property. It was common ground that the Agreement did not meet the formal requirements of an agreement to contract out of the Property (Relationships) … Continue reading
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 … Continue reading
Where an executor has concern as to a will-maker’s capacity, the appropriate course of action is to seek probate in solemn form. Public Trust v The Cancer Society of New Zealand, Otago and Southland Division Incorporated provides a useful example of the importance of contemporary evidence of capacity (where incapacity was not identified by the person taking … Continue reading
Section 14 of the Wills Act 2007 provides for wills that do not comply with the formal requirements of the Wills Act to be validated. Validation is at the discretion of the Court. Section 11 of the Wills act sets out the requirements of a valid will as follows: In Public Trust v Forster the … Continue reading
Gorringe v Pointon is a successful appeal of a High Court decision; the Court of Appeal finding that the deceased’s final and penultimate wills were more probably than not procured by undue influence. The circumstances relating the two wills found to be procured by undue influence are summarised follows: With respect to undue influence as … Continue reading
Connolly v Eckhout traverses the application of the little known Imprisonment for Debt Limitation Act 1908 to a person acting in a fiduciary capacity. By way of background: … Ms Eckhout did not pay the judgment sum. The High Court has limited powers to issue an arrest order where requirements that are largely drawn from … Continue reading
Estate of RB Walton helpfully sets out the procedure where an executor fails to obtain probate, but will not renounce or provide the original will. The relevant considerations are set out at [8] to [11] as follows: The end result in Estate of RB Walton was the appointment of an independent administrator, this being required … Continue reading
Probating a will is generally accepted as an essential step to allow executors to administer an estate. However, where there are challenges or other complications, it is important to appreciate that there may be steps that can be taken without probate. As executors derive title from the will, rather than probate (which merely proves the … Continue reading
Matters of Trust 