The High Court has exclusive jurisdiction to determine disputes involving the application of the Trustee Act and the Administration Act. The Family Court can also determine some claims brought under the Family Protection Act against estates. The incidence of claims relating to the obligations of trustees and executors as well as the rights of beneficiaries has grown and continues to do so. New Zealanders have embraced the use of discretionary trusts not just for estate planning purposes. The use of discretionary trusts for creditor protection purposes has caused an overlap with the application of insolvency, property and relationship property laws.
Contesting a will is often an important issue for family members. The Family Protection Act allows for particular classes of people to apply for provision or further provision out of the estate of a deceased person. To be successful, an applicant must show that the deceased breached the moral duty he/she was owed at the time of death. When determining the issue, the Court will take into account all of the circumstances before it. All family protection claims must be lodged within a strict time limit as an administrator can start to distribute an estate in accordance with the will after 6 months unless he/she has received notice of an intention to claim against the estate. It is therefore better to signal any family protection claim well before the six-month period. As with general litigation, most claims settle without the need for a hearing and, after sharing relevant information, it is quite usual for the claims to be settled by all related parties.
Chris has seen a growth in claims being made for the removal of executors and trustees. The test usually having to be run before the Court is whether it has become “expedient” to replace that person. That person may have shown that they cannot possibly act in an even-handed way towards beneficiaries (by events or disposition or conflict). The Courts are generally willing to remove and replace executors and trustees if that course will be a suitable, practical and efficient means of advancing the interests of the estate and/or trust and its beneficiaries. Chris can assist with all your estate and trust concerns.