KAHN V KAHN & ANOR HC WN CIV-2007-485-1772

KAHN V KAHN & ANOR HC WN CIV-2007-485-1772

The court found the estate had not been finally distributed because the Will's Special Trust remained undetermined: transferring the share portfolio to a company constituted an investment by the trustees, not a distribution to beneficiaries; s 2(4) confirms trust assets held by trustees are not deemed distributed;...

Source-derived case information.

Citation
openlaw-83ea7678_0d1e_4254_a60c_5f1e8636562f.pdf
Parties
Intended Plaintiff: Richard Henry Kahn; Intended Defendant: Claude Mark Eugene Kahn; Intended Defendant: Paul Franklin Barber
Court
High Court
Jurisdiction
New Zealand
Judgment Date
12 March 2008
Procedural Posture
Family Protection Act 1955 Application (extension of Time) / Preliminary Judgment on Whether Estate Was Finally Distributed (affecting Extension of Time)
Outcome
Deceased's estate was not finally distributed for the purposes of s 9(1) of the Family Protection Act 1955; Intended Plaintiff is not barred from applying for an extension of time; question of leave to extend to be decided at trial with substantive proceedings
Legal Topics
Extension of Time, Final Distribution of Estate, Will Trusts, Executor Duties, Statutory Limitation, Vesting and Investment of Trust Assets
Family Protection Law Trusts Estates and Succession Civil Procedure Extension of Time Final Distribution of Estate Will Trusts Executor Duties +2 more

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Parties

Richard Henry Kahn

Intended Plaintiff

Claude Mark Eugene Kahn

Intended Defendant

Paul Franklin Barber

Intended Defendant

Procedural Posture

Family Protection Act 1955 Application (extension of Time) / Preliminary Judgment on Whether Estate Was Finally Distributed (affecting Extension of Time)

Legal Issues

  1. 1 Whether an extension of time under s 9(1) of the Family Protection Act 1955 can be granted where the estate has been finally distributed
  2. 2 Whether the deceased's estate was finally distributed as at 13 August 2007
  3. 3 Whether transfer of a share portfolio to a company by executors/trustees constituted a distribution of the estate

Ratio Decidendi

The court found the estate had not been finally distributed because the Will's Special Trust remained undetermined: transferring the share portfolio to a company constituted an investment by the trustees, not a distribution to beneficiaries; s 2(4) confirms trust assets held by trustees are not deemed distributed; accordingly s 9(1) proviso did not bar the Intended Plaintiff from applying for an extension of time.

Court Disposition

Deceased's estate was not finally distributed for the purposes of s 9(1) of the Family Protection Act 1955; Intended Plaintiff is not barred from applying for an extension of time; question of leave to extend to be decided at trial with substantive proceedings

Orders

  • Registrar directed to endorse judgment with delivery time of 2.15pm on 13 March 2008 (r 540(4))
  • Declaratory finding that the estate was not finally distributed for the purposes of s 9(1) of the Family Protection Act 1955