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McLean v Public Trust [2020] NZFC 10367

Published 12 April 2021

Application for extension of time — further provision from estate — strike out — final distribution of estate — breach of moral duty — Family Protection Act 1955, ss 4 & 9 — Law Reform (Testamentary Promises) Act 1949 , ss 3 & 6 — Family Court Rules 2002 , r 193 — High Court Rules 2016, r 15.1 — McLean v Public Trust [2018] NZHC 3268 — Bean v Bean [2019] NZHC 20 — Attorney-General v Prince [1998] 1 NZLR 262 (CA) — Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 — Telecom New Zealand Ltd v Clear Communications Ltd (1997) 6 NZBLC 102,325 (HC) — AAR v PFN [2015] NZHC 330 — Re Matthews HC Auckland A1391/84, 11 February 1987 — Lilley v Public Trustee [1981] 1 NZLR 41, [1981] AC 839 (PC) — Sullivan v Brett [1981] 2 NZLR 202 (CA) — Re McTavish (dec’d) (2001) 21 FRNZ 523 — Sullivan v Brett [1981] 2 NZLR 202 — Re Eagle (dec’d) HC Auckland M721/97, 21 November 1997 — Silbery v Silbery-Dee [2008] NZFLR 191 — Rule v Rule [2017] NZHC 672 — Re Estate of Pauline, Joan v Mary [2012] NZHC 183 BC201268275 — Black v Black [2014] NZHC 1478, [2015] NZFLR 9 — Re Estate of Coffey, Clarke v Goulding [2017] NZHC 1326, [2017] NZFLR 493 — S v W [2017] NZFC 7264 — Floris v Coppard HC Rotorua CP 48/90, 25 September 1990 — Re Moffat HC Auckland CIV-2010-404-007116, 29 November 2011 — Re Magson [1983] NZLR 592 (CA) — Re Brown [1949] NZLR 509. This was an application for an extension of time to bring a claim under the Family Protection Act ("FPA") for further provision from the claimants' parents' estates. The father had died in 1989 and the mother in 2017. The son sought the granting of a block of land from his father's estate be granted to him rather than his mother's estate pursuant to ss 3 and 6 of the Law Reform (Testamentary Promises) Act ("TPA"). Counter-claims to strike out the applications were made. Numerous other proceedings in the matter had been before the High Court and declined leave to appeal to the Court of Appeal and Supreme Court. The strike-out application for the TPA claim hinged on whether the father's estate was finally distributed, which it was found to have been in late 1989. The TPA claim was therefore struck out. The basis of the FPA claim was that the parents had failed to make adequate provision from their estates for the claimants' proper maintenance and support. The Judge concluded that, as each claimant was to receive $750,000 from the residue of their father's estate, there was no reasonable grounds for a claim in relation to his estate and the application was accordingly struck out. As the claimants were left nothing in their mother's will, the Judge considered it would be inappropriate strike out this application. As their mother's estate had not been finally distributed, it was possible to grant an extension of time in which to bring the claim. Taking into consideration to the length of delay, whether the delay was fairly excusable, the strength of the claim, and the extent of prejudice to the beneficiaries, the Judge concluded it was appropriate to allow the extension of time in which to bring the claim with regards to the mother's estate. Judgment Date: 29 January 2021.