TD v O [2019] NZHC 2490

TD v O [2019] NZHC 2490

Even assuming the applicant's allegations of historic sexual assault are true and that constitutes a breach of moral duty, the applicant already stood to receive a substantial share of a very large estate (approximately 36%); awards for pure support claims are modest and the applicant's best case could not...

Source-derived case information.

Citation
[2019] NZHC 2490
Parties
Appellant: TD; First Respondent: The Executors of the Estate of Mrs T; Second Respondent: O
Court
High Court
Jurisdiction
New Zealand
Judgment Date
4 October 2019
Procedural Posture
Appeal Against Order Striking Out Proceeding / High Court Appeal (judgment on Strike Out)
Outcome
Appeal dismissed; proceeding struck out
Legal Topics
Family Protection Act 1955, Support Vs Maintenance, Moral Duty, Strike Out Application, Remedy Under Wills
Family Law Wills and Estates Succession Civil Procedure Probate Family Protection Act 1955 Support Vs Maintenance Moral Duty +2 more

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Parties

TD

Appellant

The Executors of the Estate of Mrs T

First Respondent

O

Second Respondent

Procedural Posture

Appeal Against Order Striking Out Proceeding / High Court Appeal (judgment on Strike Out)

Legal Issues

  1. 1 Whether the Family Protection Act claim discloses a reasonable basis to proceed
  2. 2 Whether allegations of historic sexual assault by a sibling give rise to a tenable support claim against the estate
  3. 3 Whether the will requires alteration to provide further support in the circumstances

Ratio Decidendi

Even assuming the applicant's allegations of historic sexual assault are true and that constitutes a breach of moral duty, the applicant already stood to receive a substantial share of a very large estate (approximately 36%); awards for pure support claims are modest and the applicant's best case could not reasonably result in further provision sufficient to alter the will; therefore the Family Protection Act claim had no reasonable prospect of success and the proceeding was correctly struck out.

Court Disposition

Appeal dismissed; proceeding struck out

Orders

  • Appeal dismissed
  • Proceeding struck out