Articles

When Charity Does Not Begin at Home and Testamentary Freedom Triumphs

Tuesday, April 11, 2017

The truism that charity begins at home might have been given a serious knock back going by the recent UK Supreme Court decision concerning an adult daughter's claim against her mother's estate in IIott v Mitson [2017] UKSC 17.

The daughter was rejected by her mother at 17.  She was her only child.  A lifelong estrangement between the two followed, lasting 26 years until mother's death at age 70.  Her mother completely cut the daughter out of the will, an act described by the District Judge as harsh and unreasonable, and left all of the almost £500,000.00 estate to three animal charities.  It was accepted that the daughter was in straightened financial circumstances.  She and her family (husband and four children) possessed old and warn out household furniture, equipment and a car which kept breaking down, lived in a house rented from a Housing Association and survived on an income supplemented by various benefits of around £20,000.00 per annum.  Despite those circumstances at the end of the day all she received from the Court was £50,000.00.  The rest of the estate went to the charities with which the deceased had had no particular connection during her lifetime.

The law in both England and New Zealand recognises the individual's freedom to dispose of their assets by will in whatever manner they wish.  In both jurisdictions, aside from the default succession rules in the event of an intestacy, there are no rules of automatic succession or forced heirship.  However both have their own particular statute which gives the Court ability to interfere with a will in favour of a limited class of persons.  In England generally speaking if the will provision has failed to make reasonable financial provision for a spouse the Court can make such financial provision for the spouse as would be reasonable in all the circumstances for that person to receive, and in the case of a child claimant only to the extent of what is reasonable for the applicant child to receive for his or her maintenance.  Certainly in the case of a child claimant this is narrower compared to the applicable statute in New Zealand which gives the broader basis to interfere with the will of when adequate provision is not available from the estate for the proper maintenance and support of the claimant.  Which means not only the economic need of the claimant is taken into account but broader intangible family considerations are also taken into account when assessing how much is necessary and proper to be awarded to the claimant to fulfil the moral duty of the testator.

There can be no doubt that under New Zealand law the daughter in the English case would have succeeded to a much greater award. That will be because of the difference in the wording of each country's statute allowing for interference by the Court.  However the concept of testamentary freedom is present in both jurisdictions so will this dramatic English example of it going hard against a poor claimant now be used against claimants in New Zealand?  Only time will tell. Each case of course will very much depend on its own circumstances.

However it is submitted that in the right case there is still scope at least in New Zealand for the truism that charity begins at home.  There have been a number of such cases in New Zealand in relation to charities, particularly in modest estates, where the outcome can be summarised by saying "charity begins at home", and indeed in at least one the Judge positively expressed agreement with the proverb.

If you have any concerns or questions on any aspect of how someone has left his or her estate to be divided or the state of someone's testatmentary writings, please contact Peter Fuscic at our Auckland Office on (09) 306 6746 (pfuscic@mcveaghfleming.co.nz).

 

This article is published for general information purposes only.  Legal content in this article is necessarily of a general nature and should not be relied upon as legal advice.  If you require specific legal advice in respect of any legal issue, you should always engage a lawyer to provide that advice.   

 

 

Recent Posts


Tags

Charity Testamentary Promises Anti-money laundering (AML) Residential Civil union KiwiSaver Subsidies Employment Shareholders' Agreement Invalid wills Grey Power Financial products Personal Properties and Securities Act 1999 Lankow v Rose Skilled migrant De facto Changes Income Section 15 Wills Act 2007 Section 8 Trust busting Trusts Property (Relationships) Act 1976 Rest Home Subsidies Ministry Commercial Property Case Study Financial Markets Conduct Act 2013 (FMCA) Erceg v Erceg Lease Titles Marriage Lease Claims against estates Reckless Trading Eviction Amundson v Raos Privacy Act 1993 Testamentary freedom Work and Income WINZ Financial Advisers Act 2008 Gifting Business Litigation Murrell v Hamilton Will Consumer credit contracts Expression of interest White v White Living standards Blackwell v Hollings Fair share Commercial Landlord Terms of Trade Tenant Companies Act 1993 Interpretation of documents Credit Contracts and Consumer Finance Act 2003 (CCCFA) Wills Break up Validity of Wills Hawkes Bay Trustee Company Limited v Judd Seperation Interpretation Act 1999 Compensation Re Estate of Feron Ilott v Mitson 2017 UKSC 17 Financial services Constructive trusts Zero Hour Contracts Family Trusts Undue influence Wilson v Donnellan Asset Protection Unfair contract terms Personal Albany Office Directors' Duties SMC Charity begins at home Duress Valid wills Deceased's wishes Economic disadvantage Will that do Family Protection Act 1955 Broadbent v Ministry of Social Development Administrators duty Re Estate of Campbell Tenants Interpretation Act 1999 Section 29 Body Corporate Wills Act 2007 Section 14 Clayton case Visa application Lump sum Trusts Bill Trust Check Up Immigration New Zealand Conract Law Ministry of Social Development Financial services provider (FSP) Executors duty Sale of Goods Relationship Property Trustee Duties Gifts Skilled migrant points Legislation update Section 15A Wills Act 2007 Immigration Testamentary capacity Due Diligence Property Tamarapa v Byerley Health and Safety Reform Bill Document Disclosure Intellectual Property Division of Functions Resident Elder Law Section 182 Family Proceedings Act 1980 Loss of income Wills Act 2007 Section 11 Estate Administration Creating Trusts Fair Trading Act 1986 Charities Contract and Commercial Law Act 2017 Auckland Office Trust Confidentiality Testamentary writing Beneficiary Rights Company Law Commercial Law

Archive