Summaries of leading cases in which Greg, Chris, Kimberly & Colette have appeared or assisted.
Re Kamo  NZHC 474
Chris acted for the Public Trust on an application for a ruling as to the meaning of a clause in a will under s 32 of the Wills Act 2007 (the Act) or, in the alternative, for correction of her will under s 31 of the Act. A preliminary issue was whether the clause that provided for the net income from the residue to be used to provide scholarships for the more than 100 descendants of two individuals was charitable. Having found it was not, the issue was whether s 32 of the Act should be used to aid interpretation, or s 31 should be used to correct the reference in the will from “income” to “capital and income”, given the drafter’s notes did not specify that only income was to be used. The court ordered correction of the will to allow recourse to capital.
Turner v Coombe  NZHC 31;  NZAR 574
Kimberly and barrister Hamish McIntosh acted for the executors of an estate in successfully defending a claim that a will maker who left the residue of his estate to a Trust to be formed “during his lifetime or by his trustees upon his death for the benefit of the local and wider community, and needy persons (including his nieces and nephews) in the Hauraki Plains/Hauraki/Coromandel area” had unlawfully delegated responsibility for the establishment of the Trust to his executors and/or that the provision was inherently uncertain. Justice Whata discussed the rules of will and trust interpretation before utilising s 61B of the Charitable Trusts Act 1957 to validate the trust for charitable purposes only, subject to some provision being made for the will maker’s sister, nieces and nephews.
Vernon v Public Trust  NZCA 388;  NZHC 1928
Barrister Hamish McIntosh, assisted by Chris, acted for the Public Trust in a successful claim that a son had, through undue influence, appropriated almost all of his father’s assets for his own benefit and that of his wife. Justice Kós in the High Court found that all the funds misapplied by the son in breach of his fiduciary obligations were held by him on constructive trust, and ordered the son to account to his father’s estate for half of those assets for the benefit of his nephew. The decision was upheld on appeal to the Court of Appeal.
Elishua v Freeland  NZHC 398
Kimberly acted for the executor of an estate in successfully defending an application for leave to apply out of time for various orders, essentially being a claim by a residuary beneficiary with a “long history of complaints” that the estate had been mismanaged and the beneficiary underpaid.
Cochrane v New Zealand Guardian Trust Company Ltd  NZHC 2830
Kimberly acted for NZGT as executor of an estate in circumstances where there were disputes between two beneficiaries as to whether certain assets passed by survivorship on death, or were severed in accordance with the division of the partnership on death.
Re Lane  NZHC 1272,  NZHC 3144
Greg and Kimberly acted for the trustees of an estate in relation to the extent of the obligation of the trustees to locate the whereabouts of a will-maker’s estranged natural children.
Carson v Lane  NZHC 3259
Greg and Kimberly acted for the trustees of a trust that was the residuary beneficiary of the estate of a very wealthy man in successfully defending claims by the deceased’s estranged children. They argued that the children’s claims should be limited to a specific sum to address their needs, whereas the children sought 80% of the remaining estate. This case was significant due to the size of the estate, and the fact that despite other cases where generous proportions of estates have been awarded to claimant children, only around one third of this estate was ultimately awarded.
Prouse v Grieve & Tipene  NZFC 4970
Greg and Kimberly acted for an adult child claiming against her father’s estate. The case raised issues about DNA evidence, challenging the presumption of paternity provided under the Status of Children Act and as provided by a birth certificate, and successfully defended allegations that the claimant should be required to take a paternity test as a precondition of making her claim.
Public Trust v H (2009) 28 FRNZ 501 (FC)
Greg acted for the Public Trust on an application first, under the Property (Relationships) Act 1976, to determine the extent of the estate of the deceased, and second under the Family Protection Act 1955 for provision to be made for the deceased’s ex-nuptial daughter, with Greg successfully arguing that the Public Trust had dual responsibilities both in presenting the application on behalf of the ex-nuptial daughter, and for presenting evidence and submissions relating to estate assets, liabilities and the deceased’s financial affairs before and after death. The outcome saw relationship property divided 75:25 in favour of the widow, with the ex-nuptial daughter receiving 37.5% of the deceased’s estate following the division of relationship property.
Re M  NZFC 6782
Greg and Kimberly acted for the parents of the subject person in a successful application for an order settling property on a Trust under s 62 of the Protection of Personal and Property Rights Act 1988 with the benefit that it would negate the need for constant reviews under the Act and costs associated with each review. The proposed settlement on the trust also met the primary objective under s 8(a) of the Act, which refers to making the least restrictive intervention possible in the life a subject person.
Lance v Lance  NZHC 2846
Greg acted on a successful application for variation of trustee powers, vesting the powers of appointment, removal, and replacement of trustees in the “trustees from time to time”, on the basis that the powers in s 43 of the Trustee Act 1956 may not be adequate to address the long term administration of the trust.
Pratley v Courteney  NZCA 436
Richard Fowler QC, assisted by Greg and Kimberly, acted for Mr Pratley on a successful appeal against a judgment which held Mr Pratley personally liable for the costs of unsuccessfully defending a claim against an estate for which he acted as an independent professional trustee. The High Court had found that Mr Pratley was liable for costs on the basis that it was not necessary for him to defend the claim. The Court of Appeal found that Mr Pratley acted in accordance with his duties as a trustee when he defended the claim against the estate. Moreover, had he not defended the claim, he could have been liable for a claim of not fulfilling his duty to protect the assets of the estate. Mr Pratley was therefore entitled to be indemnified out of the estate’s assets.
Scott v Ellison  NZCA 302, (2011) 3 NZTR 21-007, (2011) 12 NZCPR 931
Barrister Jason McHerron and Greg acted for the successful Respondent Ms Ellison on an appeal to the Court of Appeal relating to the purchase of a property from a trustee vendor, in which works to a property had been carried out without a building permit by Ms Scott, prior to her transferring the property to trust, before being sold to Ms Ellison. The issue was whether the trustees were retrospectively liable for acts preceding the trustee’s assumption of office. The Court of Appeal found that the trustees’ liability arose from the warranty in the agreement for sale and purchase, not that faulty work itself, and the onus was on the trustees to make proper inquires, acquaint themselves with the trust property, and if necessary limit their liability.
Connor v Connor  NZHC 1721
Kimberly appeared with Jason McHerron, barrister, arguing for the removal of alleged trustees of a trust in circumstances where it was disputed who the trustees were, how many trusts were in existence, and there were ongoing disputes between the brothers who both believed they were trustees.
Guest v Warner  NZHC 1165;  NZHC 666
Chris acted for the plaintiffs in an application seeking confirmation that a trustee had been validly removed. The High Court appointed an independent trustee.
Burnside v Burnside  NZHC 595
Kimberly and barrister Hamish McIntosh acted for one of the trustees of an estate in a successful application to have both himself and his brother removed as trustees on the basis that the dysfunctionality between the brothers was impeding the administration of the estate.
Foote v Foote  NZAR 1386;  NZHC 2590
Chris acted on a successful application under s 51 of the Trustee Act 1956 for orders replacing two separated “deadlocked” trustees with the couple’s two adult sons, vesting the trust property in the new trustees, and reimbursing costs. The case also highlighted the need for careful drafting, with the clause providing for the making of majority trustee decisions reading: “If the trustees are not anemones in their decision”.
Eggers v Eggers  NZHC 2732
Greg and Kimberly acted for the trustees in an application for an order vesting trust property in them following the incapacity of another of the trustees due to her dementia, and amending the power of appointment so that it vested in the trustees for the time being of the trust, rather than in the protectors jointly (which had included the removed incapacitated trustee).
Weir v Weir  NZHC 1920
Greg acted for the trustees in an application for an order vesting trust property in them following the incapacity of another of the trustees due to his dementia.
Re Trustees Executors Ltd  NZHC 1329
Greg acted for the trustees in an application for an order vesting trust property in them following the incapacity of another of the trustees due to her dementia.
Re Estate of Campbell  NZHC 1632;  3 NZLR 706
In what is one of the leading cases decided under s 14 of the Wills Act 2007, Greg represented the applicants seeking an order declaring a document valid as a will. The document was a draft will prepared following detailed discussions between the deceased and his accountant, which had been relayed by the accountant to the deceased’s lawyer. The issue was whether the document expressed the deceased’s testamentary intentions. The court found Greg’s “careful and comprehensive submissions” to be of “very considerable assistance” and an order was made declaring the document valid as the last will of the deceased.