Endnotes

^[1]Succession Law: Testamentary Claims _ A discussion paper (nzlc pp24, 1996), referred to in this report as pp24.

^[2]For details, see pp24, vii. The Commission is continuing to consult on ways that Mäori decisions about succession to ancestral property can be given greater effect.

^[3]What Should Happen to Your Property When You Die? (nzlc mp1, 1996).

^[4]See, for example: Herald, 22 August 1996; National Business Review, 30 August 1996; National Business Review, 6 September 1996; [1996] 19 TCL 34_1; Herald, 30 October 1996; Chartered Accountants' Journal, November 1996, 62; (1996) 467 Lawtalk 8_10; [1996] NZLJ 339_342; (1996) 468 Lawtalk 17_18; [1997] NZLJ 53_55, 61_62; Ruka v DSW (1996) 13 FRNZ 622, 637 (CA); Fisher (ed), Matrimonial Property (Butterworths, Wellington, 1997), para 2.14; Trapski's Family Law: Family Protection and Testamentary Promises (Brooker's, Wellington, 1997), paras WI1.06, IN.3; (1997) 11 Aust J Fam L 123_125; (1997) 16 E&TJ 230.

^[5]For details, see pp24, paras 20_23.

^[6] See Peart, "Awards for Children under the Family Protection Act 1955" (1995) 1 BFLJ 224, 225. For details of this survey and another, of 50 cases from 1985_1995 by widows and widowers under the Matrimonial Property Act 1963, see pp24, fns 10, 50_51 and 134_135.

^[7] Matrimonial Property _ An Explanation of the Matrimonial Property Bill 1975 (1975) AJHR E.6.

^[8] In 1977 the chairman of the Statutes Revision Committee Mr JK McLay mp said that

[a] number of submissions [to the Committee] advocated that the principles in the [1975] Bill should be extended to operate after the death of a spouse . . . there was general agreement that that should occur. In the meantime the 1963 Act must continue in force for . . . matrimonial property proceedings after the death of one party; this is an interim situation which all would regard as unsatisfactory but [then] unavoidable. (The Matrimonial Property Act 1976 (Legal Research Foundation Seminar Papers, University of Auckland, 1977), 18)

^[9] The Report of the Working Group on Matrimonial Property and Family Protection (Department of Justice, Wellington, 1988) recommended that this anomaly be removed.

^[10]In Z v Z (1996) 15 FRNZ 88 the Court of Appeal stressed that the proper interpretation of the financial support law that applies to spouses on divorce, the Family Proceedings Act 1980 Part VI, should include consideration of any disproportionate imbalance in spouses' potential earning capacity after a marriage of significant duration. The court also suggested that its decision in Slater v Slater [1983] 1 NZLR 166 had been misconstrued or the principles in it applied "with undue rigidity". For discussion, see Henaghan, "Are Future Earnings Matrimonial Property?" [1996] NZLJ 323; Henaghan, "B to Z and Back to A" [1997] NZLJ 3, 4; Hicks, "More Just Results?" (1997) 1 BFLJ 122, 124; Webb, "The Partnership Law Aspects of Z v Z" (1997) 1 BFLJ 137_141.

^[11]Mr JK McLay mp said too that "save for one issue (the inclusion of de facto marriages)" the Statutes Revision Committee "dealt with the Bill on a completely non-partisan basis": The Matrimonial Property Act 1976 (Legal Research Foundation Seminar Papers, University of Auckland, 1977), 12.

^[12]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.

^[13]Even if the partners had no sexual relationship; compare, for example, Hamilton v Jurgens [1996] NZFLR 350: Webb, "Quasi de facto relationships and marriage" (1997) 1 BFLJ 113, with Vaney v Bright [1993] NZFLR 761.

^[14]See, for example, the references in pp24, para 140, fn 83.

^[15]See pp24, para 140.

^[16]pp24, paras 131_133.

^[17]See, for example, Domestic Violence Act 1995; Child Support Act 1991; Accident Rehabilitation and Compensation Insurance Act 1992; Social Security Act 1964.

^[18]See, for example: De Facto Relationships Act 1996 (South Australia); Domestic Relationships Act 1994 (ACT); Family Provision Amendment Act 1996 (ACT); Ontario Law Reform Commission, Report on the Rights and Responsibilities of Cohabitants under the Family Law Act (1993); Queensland Law Reform Commission, Intestacy Rules (Report 42, 1993); Atherton, "Family Provision" (Victorian Attorney-General's Law Reform Advisory Council, Expert Report 1, completed July 1994, published 1997).

^[19]See pp24, paras 134 and 143.

^[20]For discussions of what New Zealand's human rights law's equality guarantees require, see pp24, paras 143_145; Quilter v Attorney-General (1996) 14 FRNZ 430; Schnurr, "Claims by Common Law Spouses and Same-sex Partners Against Estates" (1996) E&TJ 22; Hon Justice Kirby, "Homosexual Law Reform: The Road of Enlightenment" (1997) 6 Australasian Gay & Lesbian LJ 1; Hon Chief Justice Nicholson, "The Changing Concept of Family _ The Significance of Recognition and Protection" (1997) 11 Aust J Fam L 13; Oosterholf, "Succession Law in the Antipodes: Proposals for Reform in New Zealand" (1996) 16 E&TJ 230, 241_245, citing M v H (unreported, 18 December 1996, Ontario Court of Appeal, Charron and Doherty JAA concurring, Finlayson JA dissenting). In the Human Rights Commission's "Consistency 2000" Project New Zealand's government has sought to remove or justify even distinctions on prohibited grounds that date from before the prohibited grounds of discrimination introduced by the Human Rights Act 1993. The Law Commission considers that excluding same-sex de facto couples from property division or support legislation would be an inconsistency with the New Zealand Bill of Rights Act 1990 s 19 that:

would need to be noted on the request to include the Bill in the legislative programme (Legislation Advisory Committee, Guidelines on Process and Content (rev ed, 1991), appendix A; Cabinet Office Manual (rev ed, 1996),
the Attorney-General would be obliged to report to the House (New Zealand Bill of Rights Act 1990 s 7);
the Human Rights Commission could make the subject of a report to the Prime Minister (Human Rights Act 1993 s 5(h)(iii)); and
would be the subject of critical public discussion and debate, see, for example: "Gay couples face exclusion", Dominion, 21 April 1997, 2; "MP attacks gay exclusion", Christchurch Star, 30 April 1997, "Exclusion _ equal rights are out the door", Express, 1 May 1997, 1; "Gay partners' rights", Dominion, 5 May 1997; "Property rights", City Voice, 22 May 1997, 12.

^[21]For discussion, see Brashier, "Protecting the Child from Disinheritance: Must Louisiana Stand Alone?" (1996) 57 Louisiana LR 1; Spaht, "Forced Heirship Changes: The Regrettable `Revolution' Completed" (1996) 57 Louisiana LR 55.

^[22]The Provision for Dependants Act Amendment Act 1997 (New Brunswick) s 1 substitutes a new section 2(1) in the 1991 Act to clarify that "maintenance and support" awards from a deceased person's estate are to be made only if a child's resources (including all that the child received from the deceased's estate) are insufficient for that child to provide adequately for himself or herself.

^[23]Child Support Act 1991 ss 2, 7, 99.

^[24]Blakey was one of the later decisions (proceedings filed 8 March 1955) under the Family Protection Act 1908, the provisions of which were consolidated in the 1955 Act. The 1955 Act received the Royal Assent and came into force on 26 October 1955, but applies to estates of persons dying before or afterward: s 2(2). North J's decision referred to the "tendency . . . in the last few years . . . [to] take a benevolent view . . . [of applications and] on occasions, it might be said that there was a tendency to make new wills". (For cynicism about "making new wills" see [1964] NZLJ 313, and compare more recently Re McIntosh (1990) 7 FRNZ 580, 584: "I am enjoined by law not to make a completely new will.") North J referred to Allardice (1910) 29 NZLR 959, 12 GLR 753 and Dillon v Public Trustee [1941] NZLR 557, [1941] GLR 22 as authority that the Act imposed no automatic duty on a will-maker to make provision on moral grounds, but instead authorised court-ordered provision only if the adult child was actually in need and the estate had the means to meet that need. The Blakey approach was later overruled in Harrison [1962] NZLR 6 (itself limited by Young [1965] NZLR 294), but echoes of the denial of jurisdiction in Blakey can be seen too in Re Rough [1976] 1 NZLR 604, and Re Swanson [1978] 2 NZLR 469.

^[25]See Peart (1995) 1 BFLJ 224, 226 and pp24, 61. Compare Re Campbell (unreported, 11 November 1993, DC, Papakura, FP 055/118/93), 6: doubting that children of a testator can expect to inherit as once might have been traditionally favoured. Emphasis on independence, and the ability of an adult to organise his or her affairs broadly as one would wish without undue interference . . . are I think reflections of modern social thinking.

See too the decisions of the Court of Appeal favouring surviving partners in Clements v Clements [1995] NZFLR 544 and Wightman v Steenstra and Others (unreported, 18 June 1997, CA 268/96).

^[26]See pp24, paras 47_51 and 200_224.

^[27]Bale, "Palm Tree Justice and Testator's Family Maintenance _ The Continuing Saga of Confusion and Uncertainty in the BC Courts" (1987) 26 ETR 295 argued that in Walker v McDermott (1931) SCR 94 the Supreme Court of Canada first put a similar moral obligation gloss on the equivalent provincial legislation: the Wills Variation Act (1979) RSBC c 435 (British Columbia). Bale argued that courts applying the Act must reject the "moral duty" gloss to restore "rationality and predictability" to the law. See too Leslie, "The Myth of Testamentary Freedom" [1996] 38 Arizona LR 235, 270_273. Oosterholf, "Succession Law in the Antipodes: Proposals for Reform in New Zealand" (1997) 16 E&TJ 230, 236 says that:

Emphasising the testator's "moral duty" leads to a judicial free-for-all. Alternatively, one might say, in a free adaptation of the words of John Selden, that with such judicial power a testator's "moral duty" will vary according to the conscience of each individual judge, and as that is longer or narrower, so is the duty.

Selden is quoted (Pollock (ed), Table Talk of John Selden (1927), 43) as saying of equity:

Equity is a roguish thing. For law we have a measure . . . equity is according to the conscience of him that is Chancellor, and as that is longer or narrower, so is equity. 'Tis all as if they should make the standard for the measure a Chancellor's foot."

^[28]Although most people want to pass on their assets to members of their family, a research study undertaken in New Zealand suggests that older people value their freedom of disposition and the right to decide who their beneficiaries will be: Thorns (1995) 5 Social Policy Journal of New Zealand 30, 38. A British study drew similar conclusions, see Finch and Masson, Negotiating Family Responsibilities (Tavistock/Routledge, London, 1993). A 1990 Australian survey showed domestic property (a dwelling, or land for a dwelling, or both) being somewhat more likely to pass through the female line than the male line, though the difference was small. Of the 294 main male householders and the 336 main female householders who lived in the 372 households sampled, 22 of the males (7.5%) and 37 of the females (11.0%) received gifts or inheritances of domestic property. These were both intergenerational (eg, from parents) and within the same generation (eg, from a spouse or partner): Mullins, Exploring the Line of Descent in the Intergenerational Transmission of Domestic Property (Research Program of School of Social Sciences, Australian National University, Urban Research Program Working Paper No 55, September 1996).

^[29]See pp24, paras 29_30 and appendix A.

^[30]See, for example, In the Estate of Y (unreported, 16 May 1995, HC, Auckland, M 1732/88), where there were affidavits to the effect that the will-maker had disposed of his estate in accordance with Chinese custom and tradition, but the court overruled the will-maker's dispositions by reference to "the moral standards of the New Zealand community": pp24, paras 32_33.

^[31]Only 10.34% of those who commented supported the present law as not deficient or as deficient but still the best that could be done.

^[32]See pp24, paras 291_298.

^[33]Coote in Northey (ed), A G Davis Essays in Law (Butterworths, Wellington, 1965), 1; Property Law and Equity Reform Committee, Working Paper on Reform of the Law Reform (Testamentary Promises) Act 1949 (circa 1974). For an example, see McMillan v New Zealand Insurance Co [1956] NZLR 353, 357_358.

^[34]Courts in some cases have however implied a public policy prohibition on recovery like that in the general law of contract and in equity. See, for example, Heathwaite v NZ Insurance Ltd [1951] NZLR 6, where although a promise not to marry (compare Human Rights Act 1993 s 136) was not in breach of public policy, the court asserted that benefits conferred unlawfully or under an illegal arrangement would usually not be compensable. This implied prohibition is illustrated by a series of unreported cases brought under the Act by de facto partners. See, for example, Birtwistle v Marshall (unreported, 17 November 1969, SC, Auckland, A 87/69), 7, where Henry J said, rejecting the claim of the separated but not divorced deceased's de facto partner (herself a divorcee), that "nothing in the statute excludes the policy of the law in refusing its aid to promises founded on future illicit cohabitation". Later cases like Wright v Slane (unreported, 4 September 1978, SC, Auckland, A937/75) and Chambers v Weston (1982) 1 NZFLR 377 read down this prohibition, and for heterosexual partners see now: Property Law Act 1952 s 40A (inserted by the Property Law Amendment Act 1987 s 2); pp24, paras 140, 297.

^[35]See currently High Court Rules (Judicature Act 1908, Second Schedule) 453_454, and District Court Rules (SR 1992/109) 446_447. See too pp24, paras 333_361. However, as Beck [1997] NZLJ 61, 61_62 says, claimants will continue to need to take proceedings in the High Court if in any case jurisdiction is required: to grant equitable relief under constructive trusts and specific performance of estate contracts; to grant administration or probate and to decide testamentary incapacity disputes; and (despite the District Courts Act 1947 s 34(2A), inserted by s 7 of the District Courts Amendment Act 1996) to make tracing orders under the Administration Act 1969 s 49.

^[36]See draft Act section 9(2), para C32, and pp24, paras 146_157.

^[37]The 17 Acts (and some of their sections) which use this expression are the: Accident Rehabilitation and Compensation Insurance Act 1992 s 3; Child Support Act 1991 s 2; Companies Act 1993 s 2; Customs and Excise Act 1996 s 96(a); Domestic Violence Act 1995 s 2; Education Act 1989 s 92; Electricity Act 1992 s 111(2)(e); Family Proceedings Act 1980 s 2; Holidays Act 1981 s 30A(8); Human Rights Act 1993 s 32; Income Tax Act 1994 s OB1; Legal Services Act 1991 s 2; Overseas Investment Act 1973 s 2A; Protection of Personal and Property Rights Act 1988 s 2; Residential Tenancies Act 1986 s 2; School Trustees Act 1989 s 2; and the Social Security Act 1964 ss 27A(1), 63.

^[38]Most recently Ruka v DSW (1996) 14 FRNZ 622 (CA): discussed in McDonald, "A relationship in the nature of marriage" [1996] NZLJ 423; Dawkins, "Criminal Law: Battered Women" [1997] NZ Law Rev 50_56; Director-General of Social Welfare v W [1997] 2 NZLR 104.

The meaning of the words "in the nature of marriage" as used in the Social Security Act 1964 ss 27A(1) and 63 will not automatically be applied as well to provisions which, like section 9(2) of the draft Act (see para C31), serve different purposes. In Ruka the majority of the Court of Appeal, while not expressly approving of the outcome that the same words be accorded 17 different meanings, expressly mentioned this outcome, and stressed the importance in any case of the purpose for which the words are used. Considering in Ruka whether for the purposes of the Social Security Act 1964 a relationship was "in the nature of marriage", the Court of Appeal majority also asked two particular questions:

The first question was whether between the parties there was "financial interdependence". As defined by the Court of Appeal in Ruka, this inquiry is clearly also relevant to the court's inquiry under section 9(2). Ruka may incline courts to go further and also consider it essential to any section 9(2) relationship "in the nature of marriage". "Financial interdependence" remains unsettled in its precise meaning and emphasis, even under the Social Security Act 1964. But financial interdependence may simply reinforce the section 9(2) requirement that partners merged (or if their partners' needs required they would have merged) their incomes and assets so that the draft Act should apply to untangle their finances by compelling the dead partner's estate to divide property and pay support.

The second question was whether the parties had a mental and emotional commitment to the relationship for the foreseeable future. This matter would under section 9(2) be also relevant if not essential. It is the special intimacy of domestic partners that entitles them to a special property division entitlement and to claim support. It may be a vain hope that surviving partners will never also be battered partners. However, in the section 9(2) context, courts are unlikely to be called on by a dead and abusive partner's estate to discount or disregard a mental commitment objectively discernible in the physical indicia of the relationship because the surviving partner was a battered woman who lacked capacity to leave that relationship. Even if made, an argument of this kind would seem unlikely to be accepted in the context of section 9(2).

^[39]Re B (unreported, 9 August 1995, HC, Wellington, CP 228/93).

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