This category contains 50 posts

Not enough to explain

The subject of who determines capacity is a live topic. Is it medical? Is it legal? More importantly, does it make sense? The test regarding testamentary capacity is generally well understood. The trick is to understand it. The High Court decision in Public Trust v Lawrence clearly articulates the divide between understood and understand. As … Continue reading

Between Buckton and the deep blue sea

Trustees looking for certainty regarding costs will commonly turn their minds to a Beddoe application. However, where costs are a live issue and the grounds for a Beddoe order may not be made out, an alternative course of action is to seek a prospective costs order.  While this may appear largely the sole dominion of … Continue reading

Destruction of notes factor in failed application for will validation

Re Estate of Olive Ruby Piper relates to an application for an order declaring  that a draft will prepared by Public Trust prior to Olive Piper’s death is her last will and testament pursuant to s 14 of the Wills Act 2007. The legislative basis is set out at [2] and [18] as follows: [2] … Continue reading

Capacity vacuum

In the Matter of the Estate of Mabel Florence Murray the Court had to determine whether Mrs Murray had testamentary capacity when she executed a codicil and the earlier will. Evidence was given by Mrs Murray’s doctor, son and lawyer; all of whom were found to be credible. However, the view of the Court by … Continue reading

Null and void

The background to Hamilton v Kirwan can be set out as follows: A 58.9450 hectare block of rural land (the Property) was purchased in 1984 In December 1997 the Property owner’s daughter began living on the Property.  In 2000 she built a dwelling on the Property part of which was funded by a $20,000 advance … Continue reading

Track changes indicative of intention

Wills that do not meet the requirements of the Wills Act 2007 as set out in s 11 of that Act can be validated pursuant to s 14 of the Wills Act.  As noted in Estate of Phillips at [25], “The critical enquiry is whether the documents does any or all of the things described … Continue reading

After the horse has bolted

Moon v Lafferty is an unsuccessful claim for discovery before commencement.  The background of the claim is a family estrangement.  The applicants’ mother settled a trust during her life and gifted $300,000 to that trust from a settlement of $388,871 the deceased received from litigation between her and her daughter Jessica (one of the applicants).  … Continue reading

Thank you, no thank you

Re W relates to the scenario of which movies are made where a relative leaves considerable wealth to a single individual. In this case the prior beneficiary of the deceased’s wealth was to be his sister, W’s mother. However, after the deceased became estranged from his sister, the deceased altered his will so as to … Continue reading

Mirror, mirror on the wall

In New Zealand, mutual wills can arise: (a) by recognition of an institutional constructive trust pursuant to the equitable doctrine of mutual wills, or(b) in relation to wills signed on or after 1 November 2007 through a claim by the intended beneficiary on a promise in relation to mutual wills as provided for in s … Continue reading

Invalid Musings

Violet Filomena Cox (Violet) made a number of wills, the last of which was a hand anotated copy of Violet’s last will and an unsigned draft. The administators of Violet’s estate sought directions under s 66 of the Trustee Act 1956 as to how the estate should be distributed and for a declaration under s … Continue reading