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 (


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


Trustee Duties Fair Trading Act 1986 Wilson v Donnellan Ministry of Social Development Civil union Privacy Act 1993 Mortgagee White v White Ministry Commercial Law Gifts Constructive trusts Financial services provider (FSP) Wills Act 2007 Section 14 Wills Lankow v Rose Sale of Goods Will Testamentary capacity WINZ Business Domestic Violence Act 1995 Financial Advisers Act 2008 Commercial Interest Limitation defence Tenants Resident Visa Undue influence Financial products Reckless Trading Section 15A Commercial Property Duress Personal Lease Titles Repayment Work and Income Due Diligence Ilott v Mitson 2017 UKSC 17 Consumer credit contracts Lease Seperation Twelve years Property (Relationships) Act 1976 Tamarapa v Byerley Limitation Act 1950 Charity begins at home Amundson v Raos Limitation Act 2010 Verbal abuse Partnership based work visa Compensation Limitation period Economic disadvantage Residential Unfair contract terms Marriage Physical abuse Acknowledgment of Debt Living standards Changes Claims against estates Wills Act 2007 Section 11 Trust Check Up Asset Protection Intellectual Property Clayton case Mortgagor Skilled migrant points Domestic violence Lump sum Protection Order Case Study Broadbent v Ministry of Social Development Credit Contracts and Consumer Finance Act 2003 (CCCFA) Terms of Trade Interpretation Act 1999 Division of Functions Pattern of offending Directors' Duties Invalid wills ''Best Endeavours'' Six years Murrell v Hamilton Document Disclosure Erceg v Erceg Landlord Health and Safety Reform Bill Violence Property Expression of interest Albany Office Immigration Companies Act 1993 Financial services Elder Law Beneficiary Rights Section 15 Partner of resident Trusts Temper Estate Administration De facto Trusts Bill Acknowledgment Psychological abuse Family Trusts Legislation update Immigration New Zealand Hawkes Bay Trustee Company Limited v Judd Abuse Charities KiwiSaver Income Shareholders' Agreement Rest Home Subsidies Interpretation Act 1999 Section 29 Tenant Validity of Wills Visa application Gifting Contract and Commercial Law Act 2017 Financial Markets Conduct Act 2013 (FMCA) Break up Testamentary Promises Executors duty SMC Re Estate of Feron Family Protection Act 1955 Anti-money laundering (AML) Testamentary freedom Protector Recovery of money Section 182 Family Proceedings Act 1980 Deceased's wishes Mortgage Frustration Grey Power Wills Act 2007 Eviction Skilled migrant Valid wills Re Estate of Campbell Character requirements Wills Act 2007 Section 8 Testamentary writing Blackwell v Hollings Offending Auckland Office Administrators duty Loss of income Subsidies Interpretation of documents Trust busting Charity Will that do Personal Properties and Securities Act 1999 SN v MN [2017] NZCA 289 Fair share Body Corporate Principal Zero Hour Contracts Contract Law Employment Creating Trusts Company Law Litigation Resident Part payment Trust Confidentiality Relationship Property