New Zealand Case Law: Decisions & Judgments

Topic

Family protection act claims

Legal area

Court

31 Mar 2023

NORAGER v NORAGER [2022] NZHC 699

Citation

NORAGER v NORAGER [2022] NZHC 699
Court

High Court

The court held that it has jurisdiction to discharge the order nisi and appoint a temporary administrator under s7 because the holder of an order nisi occupies a position akin to a temporary administrator and, given the allegations of undue influence and the executor's multiple conflicting roles (executor, beneficiary, trustee and company director/shareholder), independence and impartiality could not be assured; to preserve and properly manage estate assets pending substantive adjudication the order nisi was discharged and solicitor Mason Lockhart was to be appointed as temporary administrato…
6 Sept 2022

PARKINS v PARKINS [2022] NZHC 2257

Citation

[2022] NZHC 2257
Court

High Court

Leave to appeal was refused because the appellant's contributions occurred in a family context where he reasonably expected to inherit; he has already received a 33% beneficial interest by inheritance greater than the 25% constructive trust claimed, there was no unconscionability warranting a constructive trust, the point was insufficiently compelling given its comparative modest monetary value and the cost and delay of a further appeal.
27 Jul 2022

SWIFT v GRAY [2022] NZHC 1794

Citation

[2022] NZHC 1794
Court

High Court

The decisive legal conclusion was that both causes of action depended on the same core factual issue — whether Brian intended in 2012 to create a trust for the plaintiff — such that the first and second defendants share a community of interest in the subject matter for r 1.20(2) purposes; accordingly there was no disqualifying conflict and Robertsons may continue to act for both defendants without court leave.
29 Nov 2021

ESTATE OF M H ASHWORTH [2021] NZHC 3210

Citation

[2021] NZHC 3210
Court

High Court

On the balance of probabilities the unsigned and undated document dated about 24 September 2020 was drafted in accordance with clear, contemporaneous oral instructions given to an experienced solicitor who assessed testamentary capacity, the deceased was lucid and the only reason for non-execution was his death shortly afterwards, therefore the document expresses his testamentary intentions and is to be validated under s14 Wills Act 2007.
2 Nov 2021

AP v LUCAS [2021] NZHC 2949

Citation

[2021] NZHC 2949
Court

High Court

The High Court allowed the appeal on the ground the Family Court judge failed to take into account relevant considerations (the longstanding practice of estates meeting costs in family protection claims, the size of the estate and the likelihood any award to the appellant would filter to her daughters) and therefore erred in refusing to order the estate to pay the appellant's costs; the Court ordered the estate to pay the appellant indemnity costs of $97,487.59 while confirming no costs order against the widow in the primary proceeding because the widow did not 'fail'.
22 Oct 2021

KASPER TRUSTS v VAN DE ELZEN AND ANOR [2021] NZHC 2823

Citation

[2021] NZHC 2823
Court

High Court

Beddoe orders were granted because the consolidated Family Court proceedings were not 'hostile' against the trustees, the trustees have reasonably arguable defences (including reliance on the Property Agreement and compliance with the deceased's wishes), and authorising trustees to defend and be indemnified from trust assets was in the best interests of the trusts' beneficiaries, subject to reasonableness and cooperation on costs allocation.
19 Oct 2021

JOHNS v LORD & ANOR [2021] NZCA 541

Citation

[2021] NZCA 541
Court

Court of Appeal

Leave to bring a second appeal was declined because the proposed appeal was case-specific and lacked merit: the High Court correctly held absence of estate assets was fatal to the Family Protection Act claim, procedural limits prevented raising adjournment issues, and the high threshold for a second appeal was not met.
14 Jul 2021

HARVEY v HARVEY [2021] NZHC 1771

Citation

[2021] NZHC 1771
Court

High Court

The Court declined to appoint Robert as administrator because, although he is willing and has relevant background, his longstanding estrangement from the residuary beneficiary (Jatuporn) and her opposition meant appointment would not adequately have regard to her interests and would risk perceived lack of impartiality given pending Family Protection Act claims and disputed share transfers; appointment of Robert was therefore not expedient under s6(2) Administration Act and r27; appointment was deferred and parties directed to confer on an alternative appointment process.
15 Jun 2021

CONNOLLY v ECKHOUT [2021] NZHC 1400

Citation

[2021] NZHC 1400
Court

High Court

There was a breach of moral duty requiring remedial provision; taking into account the close parent–child relationship, the deceased's offer to assist materially with a home (effectively circa NZ$250,000), the claimant's present financial vulnerability and health risk, the size of the estate and that Trust assets were not open to the claim, the appropriate and minimum sum to repair the breach was fixed at NZ$350,000 (approximately 18% of the estate).
20 Apr 2021

ROUND v ROUND [2021] NZHC 827

Citation

[2021] NZHC 827
Court

High Court

Applicant failed to discharge the onus under s119(3) because he produced insufficient evidence, the proposed Family Protection Act claim had negligible prospects given undisputed misconduct (undue influence, misapplication of estate funds, rent-free occupation) which disentitles him to relief, and vesting would be unfair and prejudicial to the estate and third parties; accordingly the application to vest disclaimed litigation rights was dismissed.