Leading Cases

Summaries of leading cases in which Greg, Chris, and Kimberly have appeared or assisted.

Court of Appeal

Pratley v Courteney [2018] 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.

Vernon v Public Trust [2016] NZCA 388; [2015] 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.

High Court

Elishua v Freeland [2019] 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.

Re Lane [2018] NZHC 1272, [2017] 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.

Turner v Coombe [2018] NZHC 31; [2018] 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.

Guest v Warner [2018] NZHC 1165; [2018] 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 [2017] 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.

Weir v Weir [2016] 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 [2015] 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 [2014] NZHC 1632; [2014] 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.

Lance v Lance [2014] 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.

Foote v Foote [2013] NZAR 1386; [2013] 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”.

 

Family Court

Re M [2017] 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.

Prouse v Grieve & Tipene [2016] 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

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.