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Wills

This category contains 29 posts

S 182 update

The Court of Appeal has upheld the High Court decision in Thakurdas v Wadsworth that executors can bring proceedings under s 182 of the Family Proceedings Act. As noted at [16]: “We add that it is now settled law that s 182 serves an important purpose in relationship property litigation, allowing courts to address property … Continue reading

Costs bite when trustees fight

Trustees fall out, sometimes to the point where a working relationship is no longer possible. Applications to remove trustees are becoming an increasingly common occurrence. So, should trustees fight attempts to remove them? When is it appropriate to do so, and when not? And what are the potential consequences of misjudged opposition? The recent decision … Continue reading

Testamentary promise

Blended families can be complicated.  Sarah Ross’s father, Phillip New, left his entire estate to his partner of 40 years Maureen Dwight.  Sarah did not challenge her father’s will on the basis that his partner Maureen promised that provision would be made for Sarah by Maureen in Maureen’s will.  A will was prepared to this effect. … Continue reading

Generosity can have its limits

A grandfather, Mr Greenwood, told his grandson that he could buy his house for $300,000 after his death. He expressed this wish to others, including his daughter (mother of the grandson) who was one of the executors of his estate, although it was not in his 2005 will. This occurred in Christchurch before the Earthquakes … Continue reading

Finding the right way

Fox v Fox relates to a claim by an executor of the estate of Mrs Fox who required the assistance of the Court to conclude the administration of the estate by selling land and distributing the proceeds of sale according to a will. The executor’s impediment to doing so was that two of the properties … Continue reading

Trustee of digital assets

Certainty as to the subject matter of a trust is one of the three fundamental requirements as to a trust.  How digital assets are defined for trust purposes and generally is now an important asset and estate planning consideration. The explosive growth of social media, digital storage and internet passwords means that careful consideration needs to be given as … Continue reading

Myths and liability

Trustees act personally.  As noted in the Supreme Court judgment in Macalister Todd Phillips Bodkins v AMP (emphasis added): “Liabilities incurred by a trustee in relation to a trust are always the personal liabilities of the trustee … A creditor has a personal right to sue a trustee and to get judgment and make the … Continue reading

Execution clause reminder

A valid will requires, amongst other things, two witnesses to the signature of the will-maker (see Wills Act, s 11).  Where a will is signed by a will-maker and the requisite two witnesses, this by itself is insufficient to confirm that the witnesses were present when the will was signed.  The standard will attestation reads: … Continue reading

She loves me, she loves me not …

It can be hard enough to deal with being de-friended on Face Book.  But what about when your mother favours the sibling who lived with her for her whole life over you? Rule and Belcher v Rule and Charles Whata J grappled with this reality when an elderly mother entered into a new will days after suffering … Continue reading

What’s fair?

The harsh reality of math of asset and estate planning is that sometimes 3 into 1 just will not fit.  Consider Talbot v Talbot.  The residual estate comprised: 1 farm interest worth approximately $4m $2m cash, and 3 beneficiaries. One son had worked on the farm from the age of 17.  The two daughters enjoyed a … Continue reading

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