Easing you through the tough business of estate litigation. McVeagh Fleming have a strong record in advising and assisting clients with trust and estate litigation, including challenges to trustee decisions, testing the validity of Wills, testamentary promises, family protection, trust liabilities and removal of trustees where necessary.

Trust and Estate Litigation

There are many instances where people want to challenge a Family Trust or the Will of a deceased person. These can be tough times, and you will need an experienced Family Trust Lawyer or Estate Litigation Lawyer. Here are some areas we can help you with.

Constructive Trusts

The Court can require assets otherwise owned by a Trust to be held in Constructive Trust for a partner where they have contributed to the property, and there was a reasonable expectation for them to have an interest in it. Speak with us today for advice on possible remedies such as this.

Family Protection

The Family Protection Act permits some people to apply to the Courts if, in their view, the Will of a deceased person did not sufficiently provide for them.

Testamentary Capacity Claims

To validly make or vary a Will, a person must have sufficient mental capacity, referred to as testamentary capacity. This requires that the Will maker at the time must be of sound mind, memory and understanding.

Suppose you have an interest in an estate and believe that the deceased’s Will might not be valid for this reason or that the Will might not be the product of the deceased’s consideration and judgment. In that case, we can help you work through these issues and advise you of the appropriate steps to take.

Testamentary Promises

Testamentary promises claims are made when a person has performed services or work for the deceased, in expectation of a testamentary reward or provision. An action arises where the deceased has failed to include that provision in their Will, causing hurt and stress during an already difficult time. We are experienced in advising clients of the process under the Law Reform (Testamentary Promises) 1949 Act and can explain the possible options available to you.

Trust Claims

Trust and Estate litigation involves a range of issues we have comprehensive experience with. These include the removal of trustees and challenges against their decisions and ensuring beneficiaries’ rights are recognised. Trustees must act in accordance with the Trust deed and in an even-handed manner towards the beneficiaries’ interests. We can represent beneficiaries to ensure these requirements are complied with and advise on claims to remove trustees and executors by the Court, when necessary. Such claims are likely when it is evident that removal is needed for the practical and efficient operation of the Trust.

Recent Insights

August 2023

Mediating Trust Disputes

Countless families across New Zealand place their most valuable assets, such as their property, into a discretionary family trust. However, when a couple separate and each party is a trustee to the same family trust, conflict and disagreement will often arise as to the management and enjoyment of trust assets. Disagreements on internal trust matters have the possibility of turning into time-consuming, expensive and public proceedings in court. Mediation is an alternative solution for settling trust disputes and may be a more advantageous option for parties.
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April 2020

A time to reflect on estate/trust matters

The current 'lockdown' is unprecedented. In times like these your first priority is to ensure you take care of yourselves, friends and family. However, while it is important to protect those close to you, you should also give consideration to the protection of your assets. Accordingly, it may be an opportune time to review your current estate planning to ensure everything is 'as you would like' and, if you have a trust, to make sure that it aligns with the provisions of the Trusts Act 2019 ("the Act") which was enacted this year but comes into force at the beginning of 2021.
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April 2020

The Family Trust and the ‘Independent Trustee’

A trust exists to hold assets for a certain purpose. For an ‘ordinary’ family trust, commonly conceptualised as a ‘mum and dad’ trust, the ‘mum and dad’ settlors ordinarily transfer their main home to trustees to hold that property for the benefit of their immediate family group. In this scenario it is common for ‘mum and dad’ to be appointed as trustees. They are additionally named as discretionary beneficiaries to ensure they may benefit from the trust assets throughout their lifetimes as well.
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