New Zealand Case Law: Decisions & Judgments

Topic

Variation of will

Legal area

Court

7 Nov 2019

MORE v MORE [2019] NZHC 2889

Citation

[2019] NZHC 2889
Court

High Court

The deceased was in breach of his moral duty to provide adequate capital provision for his widow and children; the Court approved the parties' agreed variation of clause 3 of the will under s 4 Family Protection Act 1955, granting the widow a 35% capital interest in the deceased's half share of the Hilderthorpe property and directing the residue to be divided into nine equal parts vesting on the widow's death as agreed.
22 Jun 2017

VAN MOESEKE v ANDREWS [2017] NZHC 1385

Citation

[2017] NZHC 1385
Court

High Court

Because the deceased left the applicant without provision despite an estate of substantial value and the applicant demonstrated unmet financial and health-related needs, and because the parties reached a consensual settlement with affected charities consenting, the Court exercised its power under s 4 of the Family Protection Act 1955 to make provision for the applicant and sealed the draft consent order.
6 Oct 2016

TALBOT v TALBOT [2016] NZHC 2382

Citation

[2016] NZFLR 1019
Court

High Court

The Court found the deceased parents had clear, long‑standing testamentary intentions, they provided equal residuary legacies to the two daughters of about $1.056m each, the plaintiff was not in demonstrable financial need and the inheritance was sufficient both for her maintenance and to recognise her as a family member; accordingly there was no breach of moral duty under s 4 and the claim was dismissed.
17 Feb 2016

MARTIN v FINLAYSON AND ORS [2016] NZHC 81

Citation

[2016] NZHC 81
Court

High Court

The Family Court erred in law by applying a speculative 'wise and just testator would not have done X' standard and by balancing contributions and past inter vivos benefits as a justification for varying the will; a fair and wise testatrix could lawfully have given the 10 year right of occupancy so there was no breach of the duty to provide proper maintenance and support and the will must not be amended.
13 Nov 2015

ORMSBY v VAN SELM [2015] NZHC 2822

Citation

[2015] NZHC 2822
Court

High Court

Appeal allowed. The Family Court erred by effectively re‑writing the will on fairness/equality grounds. Applying the correct test (minimal redress to remedy breach, taking account of family recognition and demonstrated financial need), the High Court altered the will so the farm vests: Alan 45%, Janine 30%, Tia 25% as the minimum required provision for proper maintenance and support given the egregious breach and the claimants' needs.
4 Dec 2014

LEWIS & ANOR v ABERNETHY & ANOR [2014] NZHC 3081

Citation

[2014] NZHC 3081
Court

High Court

The deceased discharged her duty to the daughter as primary beneficiary but failed to make adequate provision for her grandchildren; the 1984 arrangement and inherited company rights did not provide adequate or certain maintenance; given the grandchildren's needs and the size of the estate the will must be varied and each grandchild is entitled to 15% of the net estate, with indemnity costs met from the estate before distribution.

New Zealand Case Law

MORE v MORE [2019] NZHC 2889

VAN MOESEKE v ANDREWS [2017] NZHC 1385

TALBOT v TALBOT [2016] NZHC 2382

MARTIN v FINLAYSON AND ORS [2016] NZHC 81

ORMSBY v VAN SELM [2015] NZHC 2822

LEWIS & ANOR v ABERNETHY & ANOR [2014] NZHC 3081