New Zealand Case Law: Decisions & Judgments

Topic

Testamentary promises

Legal area

Court

20 Dec 2023

CHAMBERS v THE NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED [2023] NZHC 3826

Citation

[2023] NZHC 3826
Court

High Court

Shares in Chambers & Jackett Ltd and Chambers & Jackett Equipment Ltd owned by the deceased are to be vested in the plaintiff, subject to her executing a Declaration of Acknowledgement of Liability creating a personal, secured obligation to pay the interested party a gross $45,000 per year (to be treated as capital compensation so the net annual payment is $30,150), with payments subject to company solvency and secured by registration of a personal property security; leave reserved regarding a 10% profit share for the interval between the death and 30 June 2024.
19 Oct 2023

WEBB v TEVIOTDALE [2023] NZHC 2921

Citation

[2023] NZHC 2921
Court

High Court

The caveat was dismissed because the applicant failed to demonstrate a reasonably arguable proprietary interest; the evidence established at best a testamentary promise or expectation, contradicted by contemporaneous documents (2009 email), and the applicant only ever held a half-share and transferred the fee simple to the respondents, so no resulting trust over the property was reasonably arguable.
7 Sept 2023

REEVES AND MIDDLETON v MCELDOWNEY [2023] NZHC 2511

Citation

[2023] NZHC 2511
Court

High Court

The appellate court held the Family Court's quantum award was plainly excessive and unsupported by adequate reasoning; only a promise of the Tukapa Street unit was established and the appropriate award is the net sale value of that promised property (NZD 574,250.98) payable jointly to the McEldowneys, plus interest and less amounts already received; the statement that Mrs McEldowney was an 'heir apparent' did not constitute a separate testamentary promise; the correct test for quantum is reasonableness subject to ordinary appellate review.
27 Jun 2023

SWANWICK v BOSTOCK [2023] NZHC 1600

Citation

[2023] NZHC 1600
Court

High Court

The Court found as a fact that the deceased father's estate had been finally distributed because the executorial functions had been completed and assets were being held by the personal representative in his capacity as trustee; accordingly the Court had no jurisdiction under the proviso to s 6 to extend time and the interlocutory application for extension was dismissed; alternatively, even if jurisdiction existed the Court would have declined to exercise its discretion because the applicant's long delay was inadequately explained and his claim was not strong on the affidavit evidence.
5 Dec 2022

GLASS v GLASS [2022] NZHC 3233

Citation

[2022] NZHC 3233
Court

High Court

Leave under s88(2) Property (Relationships) Act 1976 was granted because there are reasonable prospects that dispositions to trusts may be set aside or compensated under ss44/44C PRA thereby enlarging the deceased's estate, and the interested party has a credible Family Protection Act claim; the 2017 Deed does not conclusively bar an FPA claim.
13 Oct 2022

STRANGE v DUNN [2022] NZHC 2648

Citation

[2022] NZHC 2648
Court

High Court

The application for security for costs was dismissed because, although the r 5.45 threshold (plaintiff resident abroad) was met, the court balanced factors including plaintiff's likely eventual ability to satisfy a costs award, the arguable merits of the plaintiff's two limbs (uncertainty of the half‑secret trust in relation to grandchildren and grounds for removal of the executor), the risk that security would prevent prosecution of an arguable claim, and that the defendant could have sought early court approval of the trust/administration; on balance it was not just to order security.
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.
25 Jul 2022

POLLOCK v POLLOCK AND WASHER AS EXECUTORS AND ADMINISTRATORS OF THE ESTATE OF REX DAVID POLLOCK [2022] NZCA 331

Citation

[2022] NZCA 331
Court

Court of Appeal

Appeal dismissed: Court upheld the High Court finding that there was no evidential or actual undue influence by Cheryl over Rex in respect of the impugned transactions; the attempted novel unjust enrichment argument to set aside lifetime gifts intended to frustrate Family Protection Act claims was not established and inappropriate to recognise as a new category; and trustees did not breach fiduciary duties in removing the appellant as a beneficiary as their decision was rational, proportionate and within the limited obligations applicable to the power exercised.
21 Mar 2022

WYLLIE & LATHAM v FIRMIN [2022] NZHC 527

Citation

[2022] NZHC 527
Court

High Court

The caveat must be sustained because it is reasonably arguable that the caveator holds a right of first refusal to purchase the property at market value (registered valuation basis), supported by contemporaneous lawyer notes and family communications and potentially enforceable by contract through part performance; consequentially the court ordered the caveat to remain until the caveator brings a contract claim within 30 working days. It was expedient to remove and replace the executors because their conduct and refusal to follow pragmatic legal advice delayed administration and prejudiced be…
21 Mar 2022

MORAIS v VENIS [2022] NZHC 522

Citation

[2022] NZHC 522
Court

High Court

The will did not create a condition precedent requiring exclusive occupation by 'Canons' before vesting; 'exclusive use' reserved the benefit to the identified religious group but did not limit the ways the property could be used to benefit them; the Diocese accepted the gift and its temporary letting and application of rents to support diocesan priestly functions did not amount to a disclaimer or defeat the bequest; clause 6 was not triggered and the declaratory relief sought by the plaintiff fails.