Morris presents at Legalwise Advanced Probate Disputes seminar

Yesterday, Sally Morris and Courtney Rutledge of Morris presented at the Legalwise Advanced Probate Disputes seminar on one of the pressing gaps in New Zealand succession law: what happens when there is nothing left in the estate to claim against.

Their session - The Modern Family Protection Act: Trends, Challenges, and Evolving Judicial Approaches - examined the limits of the FPA where assets have been moved out of an estate before death, the fiduciary duties owed by parents to their children, and the practical strategies available to restore value to an estate.

Central to the discussion was the Supreme Court's unanimous decision in A, B and C v D and E Limited [2024] NZSC 161 - the "Alphabet case” - in which three adult children, who had suffered serious abuse by their father during their childhood, attempted to unwind their father's trust transfers using breach of fiduciary duty and knowing receipt. The Supreme Court confirmed that parental fiduciary duties are negatively framed (a duty not to fundamentally violate the relationship of trust), end when caregiving responsibility ends, and cannot be extended by vulnerability alone or reverse-engineered to provide a remedy. The deliberate stripping of the estate was left unremedied because the FPA contains no anti-avoidance provision. The Court expressly noted that this is a matter for Parliament.

The session explored the downstream cases applying the Alphabet reasoning, Lane v Goldson and Mallinder v Jones, as well as the Law Commission's 2021 succession law recommendations. Sally and Courtney also took practitioners through the practical toolkit for enlarging a depleted estate including PRA claims and the s 88(2) leave mechanism, donatio mortis causa under s 2(5) FPA, and equitable and common law challenges including lack of capacity, undue influence, and unconscionable bargains.