KIRBY V SIMS AND FISHER HC WN CIV-2010-485-794

KIRBY V SIMS AND FISHER HC WN CIV-2010-485-794

Court granted Melissa leave to bring an out‑of‑time claim against Donald's estate (delay excusable and no prejudice); held Donald did not breach his moral duty to Melissa; held Irma breached her moral duty to each of Melissa, Nathan and John; estrangement of Nathan did not wholly disentitle him but reduced his...

Source-derived case information.

Citation
openlaw-edfa0951_3523_4304_a27a_bfa053061d68.pdf
Parties
Plaintiff / First Plaintiff: Melissa Tania Kirby; Executor / Trustee / Defendant: Edward William John Sims; Defendant / Trustee / Beneficiary: Carmel Miringa Fisher; Second Plaintiff: Nathan Hammond Murray; Third Plaintiff: John Leslie Birch; Defendant / Trustee: Hugh Gladstone Fisher; Defendant / Beneficiary: Peter Wakem; Defendant / Beneficiary: Gregory Wakem; Defendant / Beneficiary: Melanie Wakem; Intervenor / Remainderman / Beneficiary: Olivia Murray-Kirby
Court
High Court
Jurisdiction
New Zealand
Judgment Date
22 August 2011
Procedural Posture
Family Protection Act Claims / Estate Litigation / Judgment (trial Concluded)
Outcome
Judgment in part for applicants; leave granted to Melissa to sue Donald's estate; no further provision ordered from Donald's estate; awards ordered from Irma's estate in specified sums; ancillary relief and directions given; costs reserved.
Legal Topics
Leave to Bring Out of Time, Breach of Moral Duty, Estrangement / Disentitlement, Competing Moral Claims, Quantum of Provision, Estate Administration
Family Protection Succession / Wills Trusts Matrimonial Property Leave to Bring Out of Time Breach of Moral Duty Estrangement / Disentitlement Competing Moral Claims +2 more

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Parties

Melissa Tania Kirby

Plaintiff / First Plaintiff

Edward William John Sims

Executor / Trustee / Defendant

Carmel Miringa Fisher

Defendant / Trustee / Beneficiary

Nathan Hammond Murray

Second Plaintiff

John Leslie Birch

Third Plaintiff

Hugh Gladstone Fisher

Defendant / Trustee

Peter Wakem

Defendant / Beneficiary

Gregory Wakem

Defendant / Beneficiary

Melanie Wakem

Defendant / Beneficiary

Olivia Murray-Kirby

Intervenor / Remainderman / Beneficiary

Procedural Posture

Family Protection Act Claims / Estate Litigation / Judgment (trial Concluded)

Legal Issues

  1. 1 Whether leave should be granted to Melissa to bring an out‑of‑time claim against Donald Murray's estate
  2. 2 Whether Donald and/or Irma breached their moral duty to their children under the Family Protection Act 1955
  3. 3 Whether Nathan's estrangement disentitles him to relief

Ratio Decidendi

Court granted Melissa leave to bring an out‑of‑time claim against Donald's estate (delay excusable and no prejudice); held Donald did not breach his moral duty to Melissa; held Irma breached her moral duty to each of Melissa, Nathan and John; estrangement of Nathan did not wholly disentitle him but reduced his award; Wakem children's asserted inherited moral claim rejected; awarded specified cash sums from Irma's estate to repair breaches: Melissa NZD 750,000, Nathan NZD 600,000, John AUD 350,000; trustees directed to satisfy awards primarily from testator's cash and investments; costs reserved.

Court Disposition

Judgment in part for applicants; leave granted to Melissa to sue Donald's estate; no further provision ordered from Donald's estate; awards ordered from Irma's estate in specified sums; ancillary relief and directions given; costs reserved.

Orders

  • Leave granted to Melissa Kirby to bring an out of time claim against the estate of Donald Murray
  • Melissa Kirby's claim against Donald Murray's estate dismissed on merits (Donald did not breach moral duty)