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NEW ZEALAND LAW COMMISSION

TE AKA MATUA O TE TURE

Report 39

Succession Law

A Succession (Adjustment) Act

Modernising the law on sharing property on death

August 1997

Wellington, New Zealand

Table of Contents

The Law Commission is an independent, publicly funded, central advisory body established by statute to undertake the systematic review, reform and development of the law of New Zealand. Its purpose is to help achieve law that is just, principled, and accessible, and that reflects the heritage and aspirations of the peoples of New Zealand.

The Commissioners are:

The Honourable Justice Baragwanath – President
Leslie H Atkins qc
Joanne Morris obe
Judge Margaret Lee
DF Dugdale
Denese Henare onzm

The Director of the Law Commission is Robert Buchanan

The office is at 89 The Terrace, Wellington
Postal address: PO Box 2590, Wellington 6001, New Zealand
Document Exchange Number: sp 23534
Telephone: (04) 473–3453, Facsimile: (04) 471–0959
E-mail: com@lawcom.govt.nz

Report/Law Commission, Wellington, 1997

issn 0113–2334 isbn 1–877187–07–0

This report may be cited as: nzlc r39

Also published as Parliamentary Paper E 31AB

18 August 1997

Dear Minister

I am pleased to submit to you Report 39 of the Law Commission: Succession Law: A Succession (Adjustment) Act.

Right from the time of the enactment of the Matrimonial Property Act 1976 it has been considered anomalous that that statute’s provisions do not apply where either spouse has died. A principal purpose of the changes we recommend is to ensure that the position after death marches in step with the position for the living.

In order to do its job the Commission has had to grasp such nettles as whether and to what extent the law governing adjustments of income and assets between spouses should also be applied to couples in a quasi-connubial relationship, how if so these relationships should be defined, and whether couples of the same sex should be treated equally. Your Ministry has been working concurrently to review the rules that apply to the property and support of spouses and de facto partners during their joint lifetimes. We and the Ministry have agreed that there must be a single set of rules applying both before and after death. Since the completion of this report we have received advice as to policy adopted by Cabinet, which does not wholly coincide with our views. These are all policy questions on which views may legitimately differ, and which are not necessarily best determined by lawyers. We think it preferable for the discussion of the best answers, now and in the future, to take our views into account and we present them unaltered.

As well as replacing the Matrimonial Property Act 1963, the measure we recommend would supersede the current Family Protection and Testamentary Promises Acts. The family protection legislation is now being used in a way that is incompatible with its original objectives and we have thought a fundamental examination of its rationale to be appropriate. The chief advantage of the testamentary promises legislation is its provision of a convenient machinery for determining claims. Our recommendations refine that machinery, and extend it so that it can apply as well to the similar cases where an estate retains unjustly valuable benefits contributed to a deceased.

We see considerable advantage as well in bringing these various applications and claims under the roof of a single statute in plain language.

The Commission recommends the enactment of the draft Succession (Adjustment) Act included in this report.

Yours sincerely

The Hon Justice Baragwanath
President

The Hon Douglas Graham MP
Minister of Justice
Parliament House
WELLINGTON