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[1] The United Nations Draft Declaration on the Rights of Indigenous Peoples may also bear on Mäori succession.
[2] See, for example, Re Tatana (unreported, High Court, Whangarei, 18 November 1982, A34/81); Re Wakarua (1988) 4 FRNZ 650; Re Stubbing [1990] 1 NZLR 428, (1988) 4 FRNZ 392; Re Ham (1990) 6 FRNZ 158; Re Smith (1991) 8 FRNZ 459; Re Harvey (unreported, District Court, Christchurch, 23 July 1993, M 57/90); Rangi Kaata or Cotter Deceased (unreported, Mäori Land Court, Gisborne, 28 October 1993, 135 Gisborne MB); Re Green [1995] NZFLR 330; Brown v Pourau [1995] 1 NZLR 352, 356.
[3] As in the present law: Te Ture Whenua Mäori Act 1993 s 106.
[4] Statistics New Zealand, Demographic Trends 1995 (Statistics New Zealand, Wellington, 1995), hereafter Stats 1995, 72_74; Statistics New Zealand, Demographic Trends 1994 (Statistics New Zealand, Wellington, 1994), hereafter Stats 1994, 65.
[5] Stats 1995, 31; Stats 1994, 25.
[6] Thorns, "Inheritance and Family Change" (1995) 5 Social Policy Journal of New Zealand 30, 31, 35_36. 72% of the population are owner/occupiers of a home: "this rises to 86% for the over-60s".
[7] See Department for Courts, Annual Returns (1994). "Grant of Administration" includes probate and letters of administration.
[8] For more complete details, see chapter 10, paras 338_341.
[9] In the estate duty returns for 1984_1985, 65% of estates were worth $24 000 or less; and 90% of estates were worth $100 000 or less: New Zealand Planning Council, For Richer or Poorer (New Zealand Planning Council, Wellington, 1988) Table 5.3, 73_75. There are a number of significant limitations on these returns which tend to make the figures underestimate the value of estates. In 1985, 47% of estates were not included since they were not liable for duty and did not require a grant of administration. Duty attached only to estates worth more than $450 000. Smaller estates were included if they required a grant of administration. (A grant was required if estate assets not requiring formal transfer of ownership exceeded $20 000 in value, or if there were assets which required formal transfer of ownership). Estate duty was not assessed on all assets, and the method of valuation may have understated the value of included assets. Increasingly effective estate planning to avoid duty also probably resulted in an underestimation of the larger estates. However, in real terms today (according to the CPI: December 1985 = 632; March 1996 = 1063), the 1985 estate duty return figures correspond to 65% of estates being worth $40 367.09 or less, and 90% being worth $168 196.20 or less.
[10] Peart, "Awards for Children under the Family Protection Act 1955" (1995) 1 BFLJ 224, 225. In all:
3.0% of the judgments did not disclose the estate size;
34.4% of estates (81) were under $100 000;
10.6% (25) from $100 000_$125 000;
6.8% (16) from $125 000_$150 000;
7.2% (17) from $150 000_$175 000;
4.6% (11) from $175 000_$200 000;
7.2% (17) from $200 000_$250 000;
4.3% (10) from $250 000_$300 000;
7.7% (18) from $300 000_$400 000;
3.4% (8) from $400 000_$500 000; and
10.6% (25) from $500 000_$1 675 000.
This may be compared with our survey of 50 judgments applying the Matrimonial
Property Act 1963 from 1985_1995. In 4% (2) of the judgments the size of the estate was
not disclosed. 70% of these estates were worth less than $700 000, and 90% less than
$1 300 000. See also footnotes 50 and 51.
[11] In 1994, for example, 11% of those who died were under 50. 14% were aged between 50 and 64. 37% were aged between 65 and 79. 38% were aged 80 or more; Stats 1995, Table 4.3, 31, 72_74. The total population 65 and over was 417 630, of whom 4% died during the course of the year.
[12] "The changing age structure of New Zealand's population has had and will continue to have a substantial impact on the nature and structure of the family. The most fundamental change is the movement towards an older society. In the 20 years between 1971 and 1991, the median age of New Zealand's population increased from 26 to 32 years.": Statistics New Zealand, New Zealand Now: Families (Statistics New Zealand, Wellington, December 1994), 22_23.
[13] In 1991, 11.2% of all women aged 55_59 years were widows; 18.8% of those aged 60_64; 29.0% of those aged 65_69; 42.5% of those aged 70_74; and 65.8% of those 75 years and older: Statistics New Zealand, All About Women in New Zealand (Statistics New Zealand, Wellington, 1993), Table A9, 197.
[14] See "Human Rights and the Family" (1995) 1 BFLJ 156 for relevant international instruments; for example, article 23 of the International Covenant on Civil and Political Rights (1966) requires the State to protect the family as the natural and fundamental unit group of society.
[15] See chapter 10, paras 356_361, for discussion of agreements.
[16] The Commission acknowledges that in the case of Mäori there is, by contrast, a legitimate emphasis on handing on land and other taonga to subsequent generations, and retaining them within the hands of the same hapü or whänau: Te Ture Whenua Mäori/Mäori Land Act 1993 s 108: see para 12.
[17] For information on New Zealanders and their family arrangements, see Appendix A.
[18] See, for example, Metge, New Growth from Old: The Whänau in the Modern World (Victoria University Press, Wellington, 1995); Durie-Hall and Metge, "Kua Tutü Te Puehu, Kia Mau" in Henaghan and Atkin (eds), Family Law Policy in New Zealand (Oxford University Press, Auckland, 1992), 54_82.
[19] See, for example, Grace v Grace [1995] 1 NZLR 1, (1994) 12 FRNZ 614.
[20] In the estate of Y (unreported, High Court, Auckland, 16 May 1995, M 1732/88). See also C and K v K [1988] BCL 185. In this and following examples the Commission means no criticism of the particular decision, which is advanced only as an illustration of the current practice.
[21] For a useful discussion (in a different context), see Jackson, "Economic Justice in Divorce" (1995) 2 Cardozo Women's LJ 23, 25.
[22] Matrimonial Property _ Comparable Sharing: An Explanation of the Matrimonial Property Bill 1975 (1975) AJHR E.6, 10.
[23] Peart (1995) 1 BFLJ 224, 225. The survey analyses 235 cases from 1984_1995 where children claimed against their deceased parents' estates under the Family Protection Act 1955.
[24] Farm transfers are often begun (and sometimes completed) during will-makers' lifetimes, but the objective is similar to that of a will. A successful transfer of a farm "includes continuity of the business so that the next generation is able to receive a farm that is a `going concern'": Keating and Little, Retirement and Succession in Farm Families in New Zealand (South Island) (MAF Policy Technical Paper 94/7, Report to MAF Policy, February 1994), 69. Of the 59 farms Keating and Little surveyed, 33% were held under trust or private company structures during the will-maker's lifetime, and 70% were held under these or other arrangements by two or more generations. An important study was undertaken by Eaton: Farm Succession, Viability and Retirement (MAF Policy Technical Paper 93/16, A Report for the Rural Resources Unit, Ministry of Agriculture and Fisheries, November 1993). It showed that, in all of 10 Canterbury farms studied, it was necessary to balance the objective of the continuing viability of the farm with the objectives of supporting parents in retirement and of fairness to other family members.
[25] See, for example, Corbin, "Consider the `Win-Win' of Mediation in Estate Disputes" (1995) 14 E & TJ 365; Harris, "The Mediation of Testamentary Disputes" (1994) 5 Australian Disputes Resolution J 222; Carden, "Family Protection and Mediation" (1986) 1 FLB 66; National Working Party on Mediation, Guidelines for Family Mediation _ Developing Services for Aotearoa/New Zealand (Butterworths, Wellington, 1996).
[26] For courts' proposed powers in relation to orders of costs, see Draft Act, paras C210_C213.
[27] Strengthening the present practice of joinder and consolidation: DCR 446_447, HCR 453_454.
[28] The parties may under present practice give evidence by means of an agreed statement of facts, if the court has not ordered otherwise: DCRR 448(1)(a), 500; HCRR 455(1)(a), 502. Yet we are told that the service of affidavits in support of statements of claim (DCRR 449, HCRR 456) at present makes agreed statements of facts unlikely. See, generally: Trapski's Family Law vol 2 (Brooker's, Wellington, 1992); Patterson, Family Protection and Testamentary Promises in New Zealand (2nd ed, Butterworths, Wellington, 1994) chapters 8_10; Knight, "Claims against Deceased Estates" (NZLS Family Law Conference Papers, October 1995, vol 2), 65.
[29] Although see, for example, Re Hyde (unreported, Family Court, Fielding, 2 September 1994, FP 015/199/93); Re Cooke (No 2) (unreported, High Court, Hamilton, 28 September 1994, CP 116/90).
[30] See Corbin (1995) 14 E & TJ 365, 366.
[31] Presently the administrator may be personally liable if the estate is distributed earlier than 6 months after the administration is granted: Administration Act 1969 s 47(4); see footnote 54.
[32] The Commission understands that work has begun on the development of specialist mediation services and court rules for Family Court proceedings.
[33] The emphasis is added. The first, and also often cited formulation of this test was in Allardice v Allardice (1910) 29 NZLR 959, 972_973, affirmed on appeal to the Judicial Committee of the Privy Council [1911] AC 730, 734. The test probably originated in the "moral" language in Re Rush (1901) 20 NZLR 249, 253; Laird v Laird and others (1903) 5 GLR 466, 467; Plimmer (1906) 9 GLR 10, 24; Rowe v Lewis (1907) 24 NZLR 769, 772. See too reference to "moral responsibility" in Banks v Goodfellow (1870) 5 LR QB 549, 563_565.
[34] Thorns (1995) 5 Social Policy Journal of New Zealand 30, 38.
[35] Allardice v Allardice (1910) 29 NZLR 959, 970, approved Bosch v Perpetual Trustee Co Ltd [1938] AC 463, 478; Mudford v Mudford [1947] NZLR 837, 839.
[36] Family Protection Act 1955 s 3(2) (inserted by Family Protection Amendment Act 1967) provides for two matters which courts assessing a will-maker's "moral duty" to a grandchild must consider.
[37] For criticism of the "moral duty" test in Australian courts, see, for example: Coates v National Trustees Executors and Agency Company Ltd (1956) 95 CLR 494, 512, 522; Hughes v National Trustees and Executors Co of Australasia Ltd (1979) 143 CLR 134, 158; Goodman v Windeyer & Ors (1980) 144 CLR 490, 544; Singer v Berghouse (1994) 123 ALR 481, 487; Permanent Trustee Company Ltd v Fraser (1995) 36 NSWLR 24.
[38] Atherton, "New Zealand's Testators' Family Maintenance Act 1900 _ The Stouts, the Women's Movement and Political Compromise" (1990) 7 Otago LR 202, 216_217.
[39] Social Security Amendment Act 1950 s 18(1) (repealed); Social Security Act 1964 s 73. Compare Social Security Act 1964 s 74(e).
[40] Social Security Amendment Act 1950 s 18(3) (repealed); Family Protection Act 1955 s 13. Compare Family Proceedings Act 1980 s 62.
[41] See Family Protection Act 1955 s 3(1)(e): where a child has voluntarily undertaken to support a parent the parent may seek to have this support continued after the child's death (see chapter 8). For the history of children's lifetime obligations to support a parent, see: Destitute Persons Act 1894 ss 2, 4_8; Destitute Persons Act 1910 ss 3_5; Domestic Proceedings Act 1968; Family Proceedings Act 1980. For the history of children's obligations on death to support a parent, see: Destitute Persons Act 1894 ss 2, 4_8; Testator's Family Maintenance Act 1900; Testator's Family Maintenance Act 1906; Family Protection Act 1908; Statutes Amendment Act 1943 s 14(2); Family Protection Act 1955 s 3(e); Family Protection Amendment Act 1967.
[42] (1994) 12 FRNZ 608, 612, [1995] NZFLR 260, 264; see too the comments in footnote 20.
[43] In this, and several later examples, the Commission shows men as having earned more and having accumulated greater assets in their own name, than women. That does not imply that the Commission approves of gender inequality, or, conversely, that its proposals favour women and not men. The examples do reflect, however, what happens in claims which frequently come before the courts.
[44] Eligible claimants' financial circumstances are at present relevant to whether the will-maker made "adequate provision . . . [for the claimant's] . . . proper maintenance and support": Family Protection Act 1955 s 4.
[45] Had the will-maker intended to benefit his children or grandchildren, provision could be made for the de facto partner to have outright ownership during her lifetime, and then for the will-maker's beneficiaries to have a right to claim on her death (see paras 106_110).
[46] Re B (unreported, High Court, Wellington, 9 August 1995, CP 228/93); see too footnote 20.
[47] Preserved by the Matrimonial Property Act 1976 s 57(4).
[48] In substance, the Commission's proposal accords with the recommendations in the Report of the Working Group on Matrimonial Property and Family Protection (Department of Justice, Wellington, 1988).
[49] This example, and those that follow in this paper, are not based on any specific case, unless otherwise stated. They have features, however, which appear in a great number of cases coming before the courts.
[50] The present practice is variable. We surveyed 50 judgments applying the Matrimonial Property Act 1963 for the period 1985_1995. In only 33 was it possible to be sure whether an award was made additional to or in the place of property received from the will-maker's estate. In 48% of these 33 cases the award was additional to the property received, and in 39% the award was made in place of the property received. In the rest of the 33 cases either no order was made (6%), or the claim was made by a will-maker's estate (6%). This variable practice is partly explained by the fact that in the past claims were sometimes brought only to equalise property holding in order to minimise death duty, and were limited to what was necessary for that purpose. But if the claimants' legal rights had been clear, these proceedings would not have been necessary.
[51] In 49 of the 50 Matrimonial Property Act 1963 judgments referred to in footnote 50, it was possible to tell the monetary value of an award made. The following factors were related to the size of awards (whether considered as a percentage of the defendant's estate or as a percentage of the combined estates): the duration of the marriage; the defendant's age when married; whether the marriage was a first or subsequent marriage; whether there were children of a previous marriage and whether they supported the claim; whether the claim was made by a survivor or a will-maker's estate; how much of the property accumulated during the relationship the claimant held; how much (if any) property the will-maker left to the claimant; and the size of any Family Protection Act 1955 award the court made to the claimant from the will-maker's estate. We could rarely discern any consistent relationship. For a comparable 48-case survey between mid-1988 and 1990, see: [1991] 14 TCL 6/7_9; [1991] 14 TCL 7/7_9; [1991] 14 TCL 8/7_8. See too: Hodder (ed), "Matrimonial Property on Death" [1985] 8 TCL 46/1; West v West (1985) 2 FRNZ 1, 3 (18-case survey).
[52] See footnotes 50 and 51.
[53] Compare the present law. Applications must be made before the expiration of "a period of 12 months after the date of the grant in New Zealand of administration in the estate of the party to the marriage against whose estate the application is made": Matrimonial Property Act 1963 ss 5A(1)(b), 5A(2)(b). This period is increased in our proposals to bring it into line with our general recommendations for limitation defences: Limitation Defences in Civil Proceedings (1988, NZLC R6).
[54] Compare the present law. The Administration Act 1969 s 47 protects administrators for:
Administrators making these distributions are protected against claims under the Family Protection Act 1955; Law Reform (Testamentary Promises) Act 1949; Matrimonial Property Act 1963; Family Proceedings Act 1980 ss 26(2), 70, 99 and 180(2); Child Support Act 1991 Part VII; and also against claims under contracts relating to wills.
[55] Matrimonial Property Act 1963 s 5A(2)(b); Family Protection Act 1955 s 9(2); Law Reform (Testamentary Promises) Act 1949 s 6.
[56] Administration Act 1969 s 24(2).
[57] See chapter 10, paras 338_341.
[58] Administration Act 1969 ss 64_67.
[59] Administration Act 1969 s 19.
[60] There is provision for a person to be appointed to administer an estate as an insolvent deceased's estate pursuant to the Insolvency Act 1967, Part XVII, ss 153_163, the appointee being in effect a statutory agent. Any creditor or beneficiary is entitled to apply. Statutory claimants should be included. The court also has jurisdiction to appoint an Official Assignee or the Public Trustee as administrator of an insolvent deceased's estate. See, for example, Re Oldfield (A Bankrupt) [1995] 3 NZLR 100.
[61] For estates of people dying on or after 17 December 1992: Estate Duty Abolition Act 1993 s 3.
[62] The Commission proposes that all claims against an estate under the Draft Act must be brought within three years of a will-maker's death: see chapter 10, paras 349_355. This allows Wife's estate to apply for a property division at any time before three years after the death of Husband. Wife's children may be required to indemnify the administrator of Wife's estate for the costs of making this claim, whether made before or after Husband's death: see Draft Act s 58, para C195.
[63] Thorns (1995) 5 Social Policy Journal of New Zealand 30, 41.
[64] See Family Proceedings Act 1980 s 62 (when a spouse chooses to make a claim "the liability to maintain any person is not extinguished by reason of the fact that the person's reasonable needs are being met by a domestic benefit"). Compare Social Security Act 1964 s 74(e).
[65] See Note on Part 2 of Draft Act, paras C25_C29.
[66] Statistics New Zealand, New Zealand Now: Families (Statistics NZ, Wellington, 1994), 25_37. "De facto relationship" is defined for census purposes as "an arrangement where two persons who are not legally married to each other live together in a relationship as a couple."
[67] Statistics New Zealand, New Zealand Now: Children (Statistics NZ, Wellington, 1995), 18_19.
[68] Statistics New Zealand, All About Women in New Zealand (Statistics NZ, Wellington, December 1993), 42_43.
[69] Statistics New Zealand, New Zealand Now: Families (Statistics NZ, Wellington, December 1994), Figure 3.1, 25.
[70] Statistics New Zealand, New Zealand Now: Families (Statistics NZ, Wellington, December 1994), 25_26.
[71] See footnote 80.
[72] At the last (1991) census, only 15.4% of male de facto partners were aged 45 years or older. Only 10.5% of women de facto partners were 45 or older: Statistics New Zealand, New Zealand Official Yearbook 1995 (98th ed, Statistics NZ, Wellington, 1995), Table 6.21, 142.
[73] Stats 95, Table 4.3, 72_74. The number of people aged 15 and over who died in 1994 amounts to less than 1% (0.96%) of the total 1994 population aged 15 years and older. For a breakdown of the ages of those who died in 1994, see footnote 11.
[74] "At the 1991 census, 6% of New Zealanders over the age of 15 were living with de facto partners": Statistics New Zealand, New Zealand Now: Families (Statistics NZ, Wellington, December 1994), 25.
[75] While the numbers of census-recorded de facto partners in older age brackets are small, they have grown at the fastest rate. Between 1986 and 1991 the number of male de facto partners aged 55_64 increased 33.6%, those aged from 65_74 increased 55.6%, and those 75 and over increased 56.1%. Also, between 1986 and 1991, the number of women de facto partners aged 55_64 increased 35.6%, those aged 65_74 increased 45.5%, and those 75 and over increased 66.7%: Statistics New Zealand, New Zealand Official Yearbook 1995 (98th ed, Statistics NZ, Wellington, 1995), Table 6.21, 142.
[76] For testamentary claims, see, for example: Family Provision Act 1970 (Northern Territory); Inheritance (Family and Dependants Provision) Act 1972 (Western Australia); Dependants Relief Act 1974 (Northwest Territories); Family Relationships Act 1975 (South Australia); Family Provision Act 1982 (New South Wales); Succession Law Reform Act 1980 c 488 (Ontario); Succession Act 1981 (Queensland); Dependants Relief Act 1986 (Yukon Territory); Dependants of a Deceased Person Relief Act 1988 (Prince Edward Island); Dependants Relief Act 1989_1990 c 42 (Manitoba).
For lifetime claims, see, for example: De Facto Relationships Act 1984 (New South Wales); Property Law Act 1958 (Victoria); De Facto Relationships Act 1991 (Northern Territory); Domestic Relationships Act 1994 (Australian Capital Territory).
[77] Inheritance (Provision for Family and Dependants) Act 1975 c 63 (UK) ss 1(1)(ba), 1(1A), 3(2A). These provisions permit de facto partners who lived with a will-maker for two or more years immediately before the will-maker died to claim against the estates of people dying on or after 1 January 1996. They were inserted by the Law Reform (Succession) Act 1995 c 41 (UK) s 2, following the recommendations in The Law Commission (England and Wales), Family Law: Distribution on Intestacy (1989) Report No 187, 15_16.
[78] The Legal Services Board in 1994 said that failed attempts to have the Matrimonial Property Act 1976 apply to de facto relationships created "[a] degree of mythology [which] . . . developed to the point where seriously incorrect perceptions of the state of the law were being retailed in the community": Report of the Legal Services Board/Te Poari Ratonga Ture for the Year Ended 30 June 1994 (1994) AJHR E.7, 24_26. The Board mounted a media campaign to counter the widely-held misconceptions or lack of knowledge about property rights arising within de facto relationships.
[79] The courts have indicated that this award will usually be somewhat less than 50% of the property accumulated during the relationship: see, for example, Gillies v Keogh [1989] 2 NZLR 327, 348, 349; (1989) 5 FRNZ 490, 510, 511; Lankow v Rose [1995] 1 NZLR 277, 280_281, 286, 293, (1994) 12 FRNZ 682, 684, 690, 701. Claimant partners regularly obtain interests of between 15_40% of property in the defendant partner's name: Cull, "De Facto Couples and Family Law _ What Protection?" (New Zealand Suffrage Centennial Women's Law Conference Paper, 1993), 259; Hughes and Ivory, "De Facto Property" (NZLS Seminar Paper, September_October 1992), Appendix 2. Discretionary de facto property division under the De Facto Relationships Act 1984 (New South Wales) has also tended to result in lower and more unpredictable awards than those for spouses under the Family Law Act 1975 (Commonwealth): Queensland Law Reform Commission, De Facto Relationships (1992), Working Paper No 40, Appendix D, 192; Bailey-Harris, "Financial Rights in Relationships Outside Marriage: A Decade of Reforms in Australia" (1995) 9 Int J Law and the Fam 233, 250_253.
[80] The Minister of Justice has foreshadowed legislation in these terms:
a Heterosexual de facto partners who separate in their joint lifetimes
(1) will have a property claim
(a) only if their relationship has subsisted for a fixed period of 2_3 years, and
(b) only for an award in the court's discretion, without some or all of the presumptions which apply to spouses' property divisions under the Matrimonial Property Act 1976; and
(2) will have no separate statutory support claim; and
b Same sex de facto partners who separate in their joint lifetimes will have neither.
See, for example, "The Minister of Justice's Opening Speech" (1995) 25 VUWLR 3 (4 November 1994); "De Facto Property", Insight Documentary, National Radio, 26 February 1995; Family Property Reform segment on Assignment, TV1, September 1995; Linda Dodge interview with Minister of Justice, Morning Report, National Radio, 17 January 1996; Kim Hill interview with Minister of Justice; 9.00_Noon, National Radio, 27 February 1996.
[81] For examples and criticism of the variation in awards, see Howman, "Critique of Justice Hardie Boys' Paper" (1995) 25 VUWLR 43, 45; Parker, "De Facto Property Rights: time for change?" (1995) 1 BFLJ 179; Cull (New Zealand Suffrage Centennial Women's Law Conference Paper, 1993), 259; Hughes and Ivory, (NZLS Seminar Paper, September_October 1992), Appendix 2.
[82] Compare Matrimonial Property Act 1976 ss 26_27.
[83] Gillies v Keogh [1989] 2 NZLR 327, 348, 349, (1989) 5 FRNZ 490, 510, 511; Harvey, "The Property Rights of De Facto Partners _ Some Proposals for Legislative Reform" [1989] NZLJ 167; Lankow v Rose [1995] 1 NZLR 277, 280_281, 286, 293, (1994) 12 FRNZ 682, 684, 690, 701; Hardie Boys, "Judicial Attitudes to Family Property" (1995) 25 VUWLR 31, 41; See Barclays Bank Plc v O'Brien [1994] 1 AC 180, 198: "The `tenderness' shown by the law to married women is not based on the marriage ceremony but reflects the underlying risk of one cohabitee exploiting the emotional involvement and trust of the other. Now that unmarried cohabitation, whether heterosexual or homosexual, is widespread in our society, the law should recognise this. Legal wives are not the only group which are now exposed to the emotional pressure of cohabitation." See too Midland Bank Plc v Cooke [1995] 4 All ER 562, 565: "The economic and social significance of home-ownership in modern society, and the frequency with which cases involving disputes as to the property rights of home-sharers (married or unmarried) are coming before the courts, suggest that the [English] Law Commission's intervention [Sixth Programme of Law Reform (1995) Report No 234, Item 8] is well-timed and has the potential to save a lot of human heartache as well as public expense."
[84] See Property Law Act 1952 s 40A. The Commission has already recommended that this section be amended so that it also apply to same-sex partners: A New Property Law Act (1994, NZLC R29), para 789; The Property Law Act 1952 _ A Discussion Paper (1991, NZLC PP16), paras 159_161, Q23.
[85] See, for example, discussion and precedents in Harrison and Maze, "Family Law Agreements" (NZLS Seminar Paper, June 1996); O'Regan and Slatter, "Current Issues in Shared Ownership" (NZLS Seminar Paper, November 1995), 58_64, 100_102; Atkin, Living Together Without Marriage (Butterworths, Wellington, 1991), 155_160; Fisher, Matrimonial Property (2nd ed, Butterworths, Wellington, 1984), 694_695.
[86] Gillies v Keogh [1989] 2 NZLR 327, (1989) 5 FRNZ 490, (1989) 5 NZFLR 549; Lankow v Rose [1995] 1 NZLR 277, (1994) 12 FRNZ 682, [1995] NZFLR 1.
[87] See, for example, recognition of a will-maker's obligations to support and divide relationship property in Re Z [1979] 2 NZLR 495; Re Sutton [1980] 2 NZLR 50; Re Mclean (1991) 8 FRNZ 321; Vaney v Bright [1993] NZFLR 761; Thwaites v Keruse (1993) 11 FRNZ 19; Wright v Holland (1995) 14 FRNZ 87, [1995] NZFLR 951, [1996] 1 NZLR 213. Compare Ball v Newey (1988) 13 NSWLR 489.
[88] See the Matrimonial Property Bill 1975, as introduced containing cl 49.
[89] See, for example: Domestic Violence Act 1995; Child Support Act 1991; Accident and Rehabilitation Compensation Insurance Act 1992; Domestic Protection Act 1982; Social Security Act 1964.
[90] Compare Matrimonial Property Act 1976 ss 26_27; and chapter 6.
[91] Draft Act s 14, paras C44_C47. See, for example, Nuthall v Heslop [1995] NZFLR 755.
[92] For discussion, see Parker, "De Facto Property: A Matter of Human Rights" (1995) 1 BFLJ 280. See too Atkin, "Family Property Law Reform" (1995) 25 VUWLR 77, 83, " . . . there is much greater awareness that same sex relationships cannot be ignored." Compare Domestic Relationships Act 1994 (Australian Capital Territory); Ontario Law Reform Commission, Report on the Rights and Responsibilities of Cohabitants under the Family Law Act (1993); Queensland Law Reform Commission, Intestacy Rules (1993) Report No 42. In April and May of 1996 the Australian Capital Territory amended intestacy and family provision statutes to include de facto partners (of the same sex or otherwise): see Family Provision Amendment Act 1996; Administration and Probate Amendment Act 1996; "Gay Couples Recognised in Australian Territory Probate Law", Agence France Presse, Canberra, 22 April 1996.
[93] Reference Re Public Service Employee Relations Act (Alta) [1987] 1 SCR 313; Ministry of Transport v Noort [1992] 3 NZLR 260; Solicitor-General v Radio NZ [1994] 1 NZLR 48; Zdrahal v Wellington City Council [1995] 1 NZLR 700.
[94] Report of the Working Group on Matrimonial Property and Family Protection (Department of Justice, Wellington, 1988), 67.
[95] Atkin (Butterworths, Wellington, 1991), para 10.5, 197_198.
[96] Report on De Facto Relationships (1993) Report No 44. Compare Family Provision Act 1982 (NSW) definition of eligible person, which includes a de facto partner, as a person who, when the deceased person died, "was living with the deceased person as his wife [or as her husband] on a bona fide domestic basis."
[97] Furmage v Social Security Commission (1978) 2 NZAR 75, (1977) 1 NZAR 218; Mauri v Department of Social Welfare (1987) 4 NZFLR 481; Lichtenstein v Lichtenstein (1986) 2 FRNZ 58; Excell v Director-General of Social Welfare (1991) 7 FRNZ 239; Ireland v Hepburn (unreported, High Court, Palmerston North, 19 April 1991, CP 221/89); Shand v Smith (unreported, High Court, Blenheim, 17 July 1992, CP 28/90); Wech v Linnell (1993) 11 FRNZ 569; Thompson v Department of Social Welfare [1994] 2 NZLR 369, (1993) 11 FRNZ 402; L v P (unreported, High Court, Auckland, 29 November 1994, CP 81/93); Decision 29/95 [1995] NZAR 458; Decision 111/95 [1995] NZAR 559; Ruka v Department of Social Welfare [1995] 3 NZLR 635; Bradley-Collins v Department of Social Welfare (unreported, High Court, Whangarei, 10 May 1996, AP 36/95).
[98] (1988, NZLC R4), 136.
[99] (1994, NZLC PP23), paras 240_241 and C25.
[100] The Domestic Violence Act 1995 s 2 (read by the House of Representatives for the third time on 12 December 1995: Parliamentary Bulletin, 96.06, 22 April 1996, 29) reads
"Partner", in relation to a person, means—
(a) Any other person to whom the person is or has been legally married:
(b) Any other person (whether the same or the opposite gender) with whom the person lives or has lived in a relationship in the nature of marriage (although those persons are not, or were not, or are not or were not able to be, legally married to each other): . . .
[101] Matrimonial Property Act 1976 ss 2, 4(4); Matrimonial Property Act 1963 ss 2, 5.
[102] Crimes Act 1961 ss 205_206. See, for example, Le Gale (1979) 2 MPC 108, though here there was no competing claim by the legal wife.
[103] See Appendix B for proposals for resolving the relative priorities of claims generally.
[104] At present, if Family Proceedings Act 1980 support proceedings are initiated after a dissolution is granted, but not determined when one partner dies, the survivor may continue the proceedings against the personal representative of the deceased partner: s 70(1). In these circumstances the court may make a 1980 Act support order against the deceased partner's estate within 12 months of the date of the grant of administration in New Zealand of that estate: s 71. Family Proceedings Act 1980 support proceedings in these circumstances should be treated as proceedings under the Draft Act: see s 68, para C215.
[105] Family Protection Act 1955 ss 2_4.
[106] A recent illustration of an application which appears to be inconsistent with good policy (though it succeeded, and ultimately resulted in depriving a widow of 20% of a small estate) is Denson v Reid (1995) 14 FRNZ 8. See also the High Court order reversed by the Court of Appeal in Clements v Clements [1995] NZFLR 544. In 235 Family Protection Act 1955 cases from 1985_1994 "a common award in those [66.5% of] cases [where the estate was worth over $100 000] was between 1/5th and 1/8th of the estate . . . [t]he courts endeavour to protect the interests of children of former relationships even if is at the expense of the surviving spouse": Peart (1995) 1 BFLJ 224, 225_226. See also Example 1, para 79 and footnote 132.
[107] The Age of Majority Act 1970 s 4(1) provides that "[f]or all the purposes of the law of New Zealand a person shall attain full age on attaining the age of 20 years."
[108] Student Allowances Notice SR 1995/70, Table 1; Education Act 1989 s 303(2)(b).
[109] Langbein, "The Twentieth-Century Revolution in Family Wealth Transmission" (1988) 86 Mich LR 722, 724_739; Grainer, "Is Family Protection a Question of Moral Duty?" (1994) 24 VUWLR 141, 159; Estin, "Love and Obligation: Family Law and the Romance of Economics" (1995) 36 William and Mary LR 989, 1071.
[110] For example, compensation under the Accident and Rehabilitation Compensation Insurance Act 1992.
[111] See, for example, Child Support Act 1991 ss 9, 50; Social Security Act 1964 ss 3, 27b, 28, 29, 60f, 63a, 70a; Student Allowances Notice SR 1995/70 Table 1; Education Act 1989 s 303(2)(b).
[112] See, for example, Child Support Act 1991 s 5; Social Security Act 1964 ss 39a_39e, 40, 54, 58.
[113] Family Protection Act 1955 ss 2_4.
[114] For an exception, see the Reservation by Mr Arthur Close in Law Reform Commission of British Columbia, Statutory Succession Rights (1983) Report No 70, 152_159. While there is room to doubt that distribution on intestacy is "by definition" the result of would-be will-makers not considering the obligations they owe to others, Mr Close does argue on this basis for a judicial discretion to admit adult children's claims against intestate estates.
[115] In re E (unreported, High Court, Auckland, 25 February 1992, M 1387/90). In the event, the court decided that all the available estate was required to meet the widow's claim, and no family protection order was made in favour of the children.
[116] See P and L v B (unreported, High Court, Wellington, 23 February 1996, CP 59/92). Will-maker gave a $495 000 house to Wife2 and A equally, $25 000 to Wife2 and all the rest of the estate to A. The court divided the estate valued at around $900 000 as follows: Wife2 received half of the house and the $25 000 (a total of around $250 000); B and C received $100 000 each; and A received the rest of the estate (around $450 000).
[117] Peart (1995) 1 BFLJ 224, 225.
[118] Parliament rejected Sir Robert Stout's two attempts (in the Limitation of Power of Disposition by Will Bills 1896 and 1897) to introduce a limited system of equal fixed shares for children, partly because it was thought fixed shares would inevitably reward
some undeserving children and would not discriminate from case to case: Peart, "The Direction of the Family Protection Act 1955" [1994] NZ Rec LR 193, 193_194; Atherton (1990) Otago LR 202, 212, 217; Patterson (2nd ed, Butterworths, Wellington, 1994),
para 1.2, 2_3.
[119] See, for example, Re Dobson [1991] NZFLR 403; Cooper v Compton (1987) 2 FRNZ 469, 476; Re Wilson [1992] NZLJ 375.
[120] Peart (1995) 1 BFLJ 224, 225, puts the percentage of these cases as high as 27%.
[121] See, for example, Blyth v Cox (unreported, High Court, Hamilton, 28 July 1995, M 78/93); In the estate of Y (unreported, High Court, Auckland, 16 May 1995, M 1732/88).
[122] Re Worms [1953] NZLR 924; Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24.
[123] Hoffmann v Hoffmann (1909) 25 NZLR 425, 428; Re Green [1951] NZLR 135, 141; Re Williams [1953] NZLR 151; Re Ward [1964] NZLR 929; Re Meier [1976] 1 NZLR 257.
[124] New Zealand family provision legislation has always empowered the court to order provision for eligible family from the estate of the will-maker, with the proviso that the court "may refuse to make an order in favour of any person whose character or conduct is such as in the opinion of the court to disentitle him or her to the benefit of an order": Testator's Family Maintenance Act 1900 s 2; Testator's Family Maintenance Act 1906 s 3(2); Family Protection Act 1908 s 33(2); Family Protection Act 1955 s 5(1).
[125] Patterson (2nd ed, Butterworths, Wellington, 1994), para 5.8, 77, emphasis added. Courts have applied this proviso to hold that a will-maker had no duty to make any provision for an applicant who left a wife without any reason at all (Geen v Geen (1913) 33 NZLR 81, as explained in Golightly v Jeffcoate and Others (1913) 33 NZLR 91); was a chronic drunkard (Ray v Moncrieff and Another [1917] NZLR 234; though compare Re Field (unreported, High Court, Napier, 29 June 1989, CP 66/87) and Re Alexander (unreported, High Court, Dunedin, 12 December 1989, CP 76/89)); lacked industry, financial prudence and thrift (Sinclair and Mckenzie v Sinclair and Sutherland [1917] NZLR 145); left a husband to have a relationship and child with another man, and later attempted a bigamous marriage with a third man (Packer v Dorrington and Another [1941] GLR 337, though compare Re Z [1979] 2 NZLR 495, 509; "It is not a question of misconduct or sexual morality". See too Re A (unreported, High Court, Auckland, 17 November 1993, M 711/93) where counsel agreed that sexual preference was irrelevant.
[126] For example, unlawfully killing the will-maker, as in Re Royse [1984] 3 All ER 339; Troja v Troja (1994) 35 NSWLR 182, 185_186, and compare the suggested (obiter) effect of domestic violence in Re Nicholls [1994] NZFLR 86. In Re Smith (Deceased) (1991) 8 FRNZ 459 the court suggested that criminal conduct which did not directly affect a will-maker, and which merely created the "normal disappointment and anguish of a mother at her son's wrongdoing" would not exclude an applicant from provision or diminish the provision which should be made for an applicant with an otherwise good case.
[127] Peart (1995) 1 BFLJ 224, 225.
[128] Admittedly the Accident and Rehabilitation Compensation Insurance Act 1992 s 14 bars "proceedings for damages" arising directly or indirectly out of personal injury covered by the Act, the Accident Compensation Act 1982 or the Accident Compensation Act 1972. But in Donselaar v Donselaar [1982] 1 NZLR 97 the Court of Appeal held that an action for exemplary damages following the torts of assault and battery by a relative (brother) could still be brought in New Zealand. The Canadian courts have held that parent-child relationships are fiduciary in nature and may give rise to an action for damages for breach of fiduciary duty when there is incest or sexual assault: see, for example, KM v HM (1992) 96 DLR (4th) 289; J v J (1993) 102 DLR (4th) 177. For New Zealand examples, see S v G [1995] 3 NZLR 681, (1995) PRNZ 465; H v R (unreported, High Court, Auckland, 22 November 1995, CP 227/94). Claims may also be made against a tortfeasor's estate after he or she dies, but the limitation requirements of the Law Reform Act 1936 may be restrictive: see, for example, the claim for exemplary damages in respect of sexual abuse in T v H [1995] 3 NZLR 37. As between parents and children (and persons in the place of a parent of a child) the Crimes Act 1961 s 59(1) provides that "Every parent of a child . . . is justified in using force by way of correction towards the child, if the force used is reasonable in the circumstances." "Justified" is defined in s 2 as "not guilty of an offence and not liable to any civil proceeding."
[129] Compare Law Commission (England and Wales), Family Law: Second Report on Family Property: Family Provision on Death (1974) Report No 61; Ontario Law Reform Commission, Report on Family Law: Part IV: Family Property Law (1974); Alberta Institute of Law Research and Reform, Family Relief (1978) Report No 29; Law Reform Commission of British Columbia, Report on Statutory Succession Rights (1983) Report No 70, minority reservation; Oughton (ed), Tyler's Family Provision (2nd ed, Professional Books, Abingdon, 1984), 91; Manitoba Law Reform Commission, The Testators Family Maintenance Act (1985) Report No 63; Hong Kong Law Reform Commission, Report on the Law of Wills, Intestate Succession and Provision for Deceased Persons' Families and Dependants (1987) Report on Topic 15; Amighetti, The Law of Dependant's Relief in British Columbia (Carswell, Toronto, 1991), 178_180; Attorney-General's Law Reform Advisory Council, The Desirability of Reforming Aspects of Part IV of the Administration and Probate Act 1958 (Vic) (1994) Discussion Paper; Grainer (1994) 24 VUWLR 141.
[130] Atherton (1990) 7 Otago LR 202, 216.
[131] Peart (1995) 1 BFLJ 224, 226_227.
[132] See, for example, Re Gordge (unreported, High Court, Auckland, 19 August 1985, A 734/82); Re Lawson (unreported, High Court, Wellington, 20 April 1988, CP 210/86).
[133] Compare Inheritance (Provision for Family and Dependants) Act 1975 (England) and Family Provision Act 1982 (New South Wales).
[134] Peart's case survey of 235 Family Protection Act 1955 children's claims from 1984_1995 concludes that within the successful claims "the amounts awarded varied considerably": (1995) 1 BFLJ 224, 226. In 24.2% of the cases 57 children without siblings or competition from others were sometimes awarded 1/3 of the estate, but "more often something between one half and three quarters of the estate." In 27.2% of the cases 65 children competed with a beneficiary outside their bloodline (like a surviving step-parent), and of those
who could show financial need: who could show no financial need:
[135] Peart's case survey indicates that 91.5% of children's claims succeed: (1995) 1 BFLJ 224, 226.
[136] See footnotes 106 and 132.
[137] See, for example, Finch and Masson, Negotiating Family Responsibilities (Tavistock/Routledge, London, 1993) who conclude that in England there is no clear consensus amongst people on the responsibilities that people should perform for their relatives, so that it is inappropriate to think about family life in terms of duty. The authors maintain that there are no externally imposed rules of obligation between family members, but rather that family members negotiate commitments over time which are carried out within the family.
[138] See, for example, Broaden, "Undue Influence as a Basis for Opposing a Grant of Probate is a Particularly Difficult Ground to Prove" (1994) 68 Law Institute J 57.
[139] These values are calculated by reference to the Estate and Gift Duties Act 1968 Second Schedule tables.
[140] In the estate of V (unreported, High Court, Auckland, 15 December 1995, M 776/94).
[141] See, for example, Elston v Brice (1993) 10 FRNZ 252; Lyon v Wilcox [1994] 3 NZLR 422.
[142] For discussion, see Davey, "Testamentary Promises" (1988) 8 Legal Studies 92; Sweatman, "Claims for Compensation for Services Rendered" (1994) 14 E & TJ 143.
[143] See, for example, Webster v Webster [1976] 2 NZLR 304; Breuer v Wright [1982] 2 NZLR 77; McCormack v Foley [1983] NZLR 57; Flemming v Beevers [1994] NZFLR 108.
[144] See, for example, Griffiths v Williams (1977) 248 Estates Gazette 947; Greaseley v Cooke [1980] 3 All ER 710; Re Basham [1986] 1 WLR 1498, [1987] 1 All ER 405; Wayling v Jones (1993) 69 P & CR 170; Walton v Walton (unreported, English Court of Appeal, 14 April 1994). See too estoppel arguments with testamentary promises claims in Re Moore (unreported, High Court, Dunedin, 11 October 1982, A 12/82); Moffat v Moore (unreported, High Court, Christchurch, 16 February 1983, A 402/79).
[145] See, for example, Deglman v Guaranty Trust Co of Canada (1954) 3 DLR 785; Hink v Lhenen (1974) 52 DLR (3rd) 301; Clarkson v McCrossen Estate (1995) 122 DLR (4th) 239.
[146] See, for example, Baxter v Gray (1842) 3 M & G 771, 133 ER 1349; Walker v Broughner (1889) 18 Ontario Reports 448; Re Jacques (1968) 66 DLR (2nd) 447. Compare Webster v Wooley (unreported, Supreme Court, Christchurch, 5 October 1977, A 27/77). See also Birks, An Introduction to the Law of Restitution (Rev ed, Clarendon Press, Oxford, 1989); Goff and Jones, The Law of Restitution (4th ed, Sweet and Maxwell, London, 1993).
[147] See, for example, Ogilvie v Ryan (1976) 2 NSWLR 504.
[148] See, for example, Re Newman (unreported, High Court, Whangarei, 3 March 1992, M 72/87) "Often a consideration of `reasonable' provision in all the circumstances in respect of a testamentary promise will not be far from a consideration of `reasonable expectations' involved in the trust context."
[149] For discussion, see Patterson (2nd ed, Butterworths, Wellington, 1994), chapters 17_18; Butterworths Family Law in New Zealand (7th ed, Butterworths, Wellington, 1995), paras 7.931_7.939; Peart, "Re Welch: The Boundaries of the Testamentary Promises Act" [1991] NZLJ 77; Property Law and Equity Reform Committee, "Working Paper on Proposals for Reform of the Law Reform (Testamentary Promises) Act 1949" (circa 1974); Coote, "Testamentary Promises Jurisdiction in New Zealand" in Northey (ed), A G Davis Essays in Law (Butterworths, Wellington, 1965), 1; Davis, "The Law Reform (Testamentary Promises) Act 1949 (NZ)" (1950) 13 MLR 353.
[150] Law Reform (Testamentary Promises) Act 1949 s 3(1); Olsen v Cambus (1994) 12 FRNZ 142, [1994] NZFLR 520; Peart [1991] NZLJ 77, 81.
[151] Section 3(1); McMillan v New Zealand Insurance Co [1956] NZLR 353, 357.
[152] Contrast (in the law of contract) the Contracts (Privity) Act 1982.
[153] See, for example, Heathwaite v NZ Insurance Co [1950] NZLR 6 (a promise not to marry: compare Human Rights Act 1993 s 136); Re Newman (unreported, High Court, Whangarei, 3 March 1992, M 72/87) (beneficial interest by way of constructive trust after misapplying welfare funds).
[154] Re Welch [1990] 3 NZLR 1, 7.
[155] See, for example, Wright v Holland (1995) 14 FRNZ 87, [1995] NZFLR 951, [1996] 1 NZLR 213; Vaney v Bright [1993] NZFLR 361; Thwaites v Keruse (1993) 11 FRNZ 19.
[156] Compare the present law. The Law Reform (Testamentary Promises) Act 1949 s 3 provides that the claimant must prove " . . . an express or implied promise" (emphasis added).
[157] See Illegal Contracts Act 1970. Compare Re Newmann (unreported, High Court, Whangarei, 2 March 1992, M 72/87); Tinsley v Milligan [1993] 3 WLR 126, [1993] 3 All ER 65; Enonchong, "Title Claims and Illegal Transactions" (1995) 111 LQR 135.
[158] Law Reform Act 1944 s 3(1).
[159] Law Reform (Testamentary Promises) Act 1949 s 3(1) (as amended by Law Reform (Testamentary Promises) Amendment Act 1961 s 2).
[160] From 1 July 1992. See Family Protection Act 1955 s 3A (as inserted by Family Protection Amendment Act 1991 s 3); Law Reform (Testamentary Promises) Act 1949 s 5 (as inserted by Law Reform (Testamentary Promises) Amendment Act 1991 s 3); Family Courts Act 1980 ss 11(1)(gb), 11(1)(gc) (as inserted by Family Courts Amendment Act 1991 s 2(1)).
[161] Family Protection Act 1955 s 3A(2); Law Reform (Testamentary Promises) Act 1949 s 5(2).
[162] Family Protection Act 1955 s 3A(3); Law Reform (Testamentary Promises) Act 1949 s 5(3).
[163] Family Protection Act 1955 s 3A(4); Law Reform (Testamentary Promises) Act 1949 s 5(4).
[164] From 1 July 1992. See Family Courts Act 1980 s 11(1A) (as inserted by the Family Courts Amendment Act 1991 s 2(2)); District Courts Amendment Act (No 2) 1992 s 6.
[165] The transfer provisions in the Family Courts Act 1980 (s 14) prevail over the general provisions for transfer of proceedings in the District Courts Act 1947: Family Courts Act 1980 s 16(2).
[166] (1989, NZLC R7), paras 5, 295, 307_308, 312_313, 315. This tentative recommendation should be put in the context of the related proposal that jurisdiction over the grant of probate and letters of administration be conferred on the Family Court on the same basis.
[167] The Commission understands that the present civil case management system in the High Court requires parties to consider mediation of a dispute.
[168] Sections 5, 8A; Re Madden (1993) 11 FRNZ 45.
[169] Section 3(1); McCormack v Foley [1983] NZLR 57; Patterson (2nd ed, Butterworths, Wellington, 1994), para 17.4, 272.
[170] Section 2(5), stating that for the purposes of the Act the estate is deemed to include donationes mortis causa (gifts in contemplation of death); Nosworthy v Nosworthy (1907) 9 GLR 303; Re Kensington [1949] NZLR 382; Re Brownlee [1990] 3 NZLR 243.
[171] See, for example, Re Webster [1976] 2 NZLR 304; Breuer v Wright [1982] 2 NZLR 77; McCormack v Foley [1983] NZLR 57; Re Cullen (unreported, High Court, Auckland, 15 August 1986, A 1015/84); Re Hayward [1989] 1 NZLR 759; Re Madden (1993) 11 FRNZ 45; Re Hills (unreported, High Court, Christchurch, 14 October 1994, M 1209/89); Re B (unreported, High Court, Wellington, 25 July 1995, CP 228/93).
[172] For discussion of questions of priority, see Patterson (2nd ed, Butterworths, Wellington, 1994), para 18.4, 306_307; Atkin (Butterworths, Wellington, 1991), para 8.12, 170_171; Sheppard, "Contracts to make Wills and the Family Protection Act 1955: Is the Promisee a Creditor or a Beneficiary?" (1985) 15 VUWLR 157, 179; Flannery, "Family Protection: Coach and Four through an Act of Parliament" [1978] NZLJ 451, 454; Sutton, "Ousting the Family Protection Act Jurisdiction" [1977] NZLJ 57, 58_59; Hardingham, "Schaefer v Schuhmann: Promisee v Dependant" (1972) 10 University West Aust LR 115, 128.
[173] For example, "the rest of my estate".
[174] For example, "$1 000".
[175] For example, "my Nissan motorcar, registration SJ 1234".
[176] As occurred in applications under the Testator's Family Maintenance Act 1900. See, for example, Parker v Carr [1906] 24 NZLR 895; Plimmer v Plimmer (1906) 9 GLR 10. These decisions were effectively reversed by later legislation: Testator's Family Maintenance Act 1906 s 3(4); Family Protection Act 1908 ss 33(3)_(4); Family Protection Act 1955 s 7. Compare Estate and Gift Duties Act 1968 s 56(1), providing that estate duty is a charge on the whole of the dutiable estate.
[177] Matrimonial Property Act 1963 s 8A; Family Protection Act 1955 s 7; Law Reform (Testamentary Promises) Act 1949 s 3(6).
[178] Limitation Defences in Civil Proceedings (1988, NZLC R6), para 128.
[179] Claims must generally be made within one year of the date of grant of administration, although time limits may be extended for an indefinite period unless the estate has been "finally distributed": Matrimonial Property Act 1963 s 5A; Family Protection Act 1955 s 9; Law Reform (Testamentary Promises) Act 1949 s 6. By contrast, the Commission's limitation defence recommendations envisage a "long-stop" extension period of 15 years from the time the cause of action arose, which is subject to only three exceptions: Limitation Defences in Civil Proceedings (1988, NZLC R6), paras C196_C198 and Schedule 3.
[180] Administration Act 1969 ss 47_51.
[181] Particularly since the decision in Re Bimler (Deceased) [1994] 3 NZLR 13; (1994) 12 FRNZ 68. The lack of District Court jurisdiction to make tracing orders under the Administration Act 1969 s 49 identified in Re Plank (unreported, High Court, Whangarei, 18 November 1994, M 2/92) should be cured by the Law Reform (Miscellaneous Provisions) (No 5) Bill 1995 cl 44. (This Bill was introduced and referred to the Justice and Law Reform Select Committee on 19 December 1995, and at 26 July 1996 had not been read for a second time: Parliamentary Bulletin, 96.16, 29 July 1996, 32.) See Draft Act s 49(3), para C162.
[182] The same cannot be said with confidence for adult children's claims, if they continue to be allowed (see chapter 7). In that case, we would propose that the time limit be six months from the death of the will-maker, unless there are exceptional circumstances; and, even then, an extension should not be permitted to disturb distributions of the estate which have been made when the extension is sought.
[183] Administration Act 1949 s 47.
[184] Compare the present law. A spouse who has separated from the will-maker but whose marriage to the will-maker is not dissolved at the time the will-maker dies may still claim: Patterson (2nd ed, Butterworths, Wellington, 1994), para 11.8, 203_206.
[185] This is an effort required of living spouses whose marriage dissolves on separation: Family Proceedings Act 1980 s 64(2).
[186] Hooker v Guardian Trust & Executors Co of NZ [1927] GLR 537; Patterson (2nd ed, Butterworths, Wellington, 1994), para 6.3, 82_85.
[187] Compare Social Security Act 1964 s 69F(6).
[188] See, for example, Singer v Berghouse [No. 2] (1994) 123 ALR 481. Compare Family Proceedings Act 1980 Part VI.
[189] Minors' Contracts Act 1969; Matrimonial Property Act 1976 s 21(7).
[190] See Matrimonial Property Act 1976 s 21; Matrimonial Property Act 1963 s 6; Gillies v Keogh [1989] 2 NZLR 327, 334, (1989) 5 FRNZ 490, 496_497, (1989) 5 NZFLR 549, 555_556.
[191] The Contracts Enforcement Act 1956 s 2 requires that contracts relating to interests in land be in writing, although the contributor may be relieved of proving a written agreement if he or she can show part performance: see, for example, Flemming v Beevers [1994] NZFLR 108. See also Property Law Act 1952 s 49A; A New Property Law Act (1994, NZLC R29), Part 4 Subpart 1 ss 38_40, 264(2) and Schedule 8, paras 223_235.
[192] Matrimonial Property Act 1976 s 21(10)(c)_(d).
[193] Wills Amendment Act 1955 Part I; Wills Amendment Act 1969 s 2.
[194] Banks v Goodfellow (1870) LR 5 QB 549; Public Trustee v Bick [1973] 1 NZLR 301; Peters v Morris (unreported, Court of Appeal, 19 May 1987, CA 99/85); B v F [1992] NZFLR 279; Brown v Pourau [1995] 1 NZLR 352.
[195] Protection of Personal and Property Rights Act 1988 ss 6, 11, 54_55. See, for example, K v Public Trustee (1995) 13 FRNZ 91; B v F [1992] NZFLR 279.
[196] Barry v Butlin (1838) 2 Moo PC 480, 12 ER 1089; Boyse v Rossborough (1857) 6 HLC 2; Tanner v Public Trustee [1973] 1 NZLR 68.
[197] Since this section of the paper was prepared, the Government has put to the Superannuation Accord parties and publicly announced two important proposals for changes to the superannuation surtax; see footnote 200.
[198] Although the ultimate source of funding is central government, the mechanics of these subsidies are complex. Regional Health Authorities (RHA's) meet the cost of care, over and above what the older person contributes. This is funded out of the RHA's general allocation from government, which considers (but does not specifically credit) the costs involved when setting the RHA's funding. Beneficiaries are means-tested by the staff of the Department of Social Welfare (DSW), and that determines how much (if anything) the beneficiary is required to pay. The DSW may in appropriate cases make arrangements to "lend" beneficiaries money so that they can meet residential care charges. As we understand it, no money is in fact lent to the beneficiaries or to the RHA. What happens is that the DSW approves the beneficiary paying no charge or a lesser charge for residential care. The RHA meets the cost of the resulting shortfall as they do the cost of the subsidy. Any money later paid back by the beneficiary, however, is paid into the consolidated fund, and not the account of the RHA.
[199] From 1 July 1996, rising to $150 from 1 July 1997. For a single person the amount will become $90 per week on 1 July 1996 and $100 per week on 1 July 1997: Tax Reduction and Social Policy Bill 1996 and Income Tax Act 1976 Amendment Act (No 4) 1996.
[200] Since this section of the paper was prepared, the Government has put to the Superannuation Accord parties and publicly announced two important proposals for changes to the Superannuation Surtax:
(Joint Press Statement of the Rt Hon W F Birch, Minister of Finance, and the Hon P J Gresham, Minister of Social Welfare, 29 May 1996; "Surtax Bill in Parliament Today", The Dominion, 31 July 1996, 1)
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