New Zealand Case Law: Decisions & Judgments

Topic

Testamentary provision

Legal area

Court

20 Dec 2013

CARSWELL v CARSWELL [2013] NZHC 3562

Citation

[2013] NZHC 3562
Court

High Court

The Court held the provision for Annabel was inadequate as at the date of death (Dec 2011) because a wise and just testator, aware of Annabel's serious illness and foreseeable treatment costs and dependent son, would have provided further; the proper minimum intervention was to increase Annabel's residuary share by $85,000, to be met by reducing William's residuary share, while leaving the specific bequest of the Swamp intact.
20 Nov 2013

BA v MA & ORS [2013] NZHC 3072

Citation

[2013] NZHC 3072
Court

High Court

Protective trusts can validly discharge a deceased's moral duty where justified by evidence; here the deceased's explicit findings about the appellant's longstanding instability and evidence of mental health and parenting concerns provided legitimate reasons for a protective trust, but the trustees' current distributions were manifestly inadequate and posed real risk to proper maintenance, so the court modified the outcome by ordering minimum ongoing provision (5% of corpus annualised) and adjourned review for 12 months; costs allocated partly from the protective trust.
1 Aug 2013

BONES v WRIGHT [2013] NZHC 1922

Citation

[2013] NZHC 1922
Court

High Court

The High Court found the Family Court judge erred in focusing on comparisons of financial positions and in failing to limit analysis to whether the testatrix breached her moral duty to her daughter; applying the correct legal principles to the facts the deceased's provision of a four-ninth residuary share (approx. $300,000) was adequate for the daughter's proper maintenance and support, so no breach was established and the Family Court decision granting further provision was set aside.
21 Apr 2009

THE NATIONAL HEART FOUNDATION OF NEW ZEALAND AT AUCKLAND AND THE ROYAL NEW ZEALAND FOUNDATION FOR THE BLIND AT AUCKLAND, BOTH CHARITABLE BODIES V PHILIPPA MARGARET CARROLL HC NEL CIV 2008 442 495

Citation

openlaw-579aea9c_ff86_4ed5_8946_a2da124eb035.pdf
Court

High Court

Leave to appeal was declined because the issues advanced were primarily factual and discretionary (origins of the estate and testamentary gifts are established factual considerations), did not raise novel or sufficiently important questions of law for the Court of Appeal, and therefore failed the s67 Judicature Act test weighing importance against cost and delay.

New Zealand Case Law

CARSWELL v CARSWELL [2013] NZHC 3562

BA v MA & ORS [2013] NZHC 3072

BONES v WRIGHT [2013] NZHC 1922

THE NATIONAL HEART FOUNDATION OF NEW ZEALAND AT AUCKLAND AND THE ROYAL NEW ZEALAND FOUNDATION FOR THE BLIND AT AUCKLAND, BOTH CHARITABLE BODIES V PHILIPPA MARGARET CARROLL HC NEL CIV 2008 442 495