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This book is only available in PDF format
Author(s): Helen Cull KC, Nicola Peart
Published: 26 August, 2002
Pages: 124
 

The purpose of this seminar is to examine recent developments in relation to claims against deceased estates. The applicable law has changed dramatically in recent times. The property rights of spouses and de facto partners, including same sex partners, have been enhanced greatly as a result of amendments in 2001 to the Matrimonial Property Act 1976, the Administration Act 1969 and the Family Protection Act 1955. Aside from these statutory changes, there have been significant developments in the general law relating to claims against deceased estates, such as the change in approach to claims by adult children under the Family Protection Act, the increased use of mutual wills and some contentious issues surrounding testamentary capacity and undue influence.

The NZLS Seminar on Wills and Estate Administration after the Property (Relationships) Act dealt with such matters as wills instructions and drafting tips, the division of property on death and advising surviving spouses and de facto partners. While some overlap with that seminar is inevitable, the focus of this seminar will be on claims against deceased estates by spouses, de facto partners and other family members.

This seminar will consider claims made under the Property (Relationships) Act, the Family Protection Act, the Testamentary Promises Act, the Wills Act, the Protection of Personal and Property Rights Act as well as common law claims against deceased estates and the procedures to be followed. The impact of the Property (Relationships) Act on the other statutory and common law remedies will also be addressed.

This seminar will not rehearse well-established rules and principles, nor will it provide a complete overview of the law of succession. It will concentrate on statutory amendments and recent developments in case law as they relate to claims against deceased estates and offer suggestions for future development.

This seminar book is divided into two parts:
Part 1 provides an overview of the following Acts and the procedures to be followed:
  • Property (Relationships) Act 1976
  • Administration Act 1969
  • Family Protection Act 1955
  • Law Reform (Testamentary Promises) Act 1949
  • Wills Act 1837 (UK)
  • Protection of Personal and Property Rights Act 1988
  • Te Ture Whenua Maori / Maori Land Act 1993.

Part 2 provides an overview of the non-statutory claims against estates. It is divided into three sections:
  1. Challenging the validity of a will on grounds of testamentary incapacity, undue influence, duress, fraud, mistake and the forfeiture rule.
  2. Challenging the contents of the estate. This section will deal with constructive trusts, estoppel, unjust enrichment, quantum meruit and donationes mortis causa.
  3. Challenging the terms of the will. This will cover contracts to leave property by will, mutual wills and secret trusts.

We will conclude with a brief overview of the recent cases dealing with solicitors’ liability for negligence in the context of wills.

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