Equity Essay Legislation and case law has been evolving throughout history surrounding testamentary promises. The attitudes of the courts have ebbed and flowed towards claims testing the validity of a will. New Zealand was the first country in the commonwealth jurisdiction to enact a family protection act, the Testators Family Maintenance Act 1900. Although legislation has changed considerably since the incorporation of the first act, the central concept has remained essentially unchanged. There are three main statutes in New Zealand governing family protection and testamentary promises, Property (relationships) Act 1976, Law Reform (Testamentary Promises) Act 1949 and the Family Protection Act 1955. This essay will explore these statutes and the cases in which reflect the courts attitude towards these. The writer will critically analyse the “attack against testamentary freedom” from all sides. The Law Reform (Testamentary Promises) Act 1949 The Law Reform (Testamentary Promises) Act 1949 (“Testamentary Promises Act”) is “an act to make better provision for the enforcement of promises to make testamentary provision in return for services rendered.” A claim will be made under the Testamentary Promises where the claimant has performed unpaid services or work for the deceased in return for a provision in their will. Although this may seem like a straightforward contractual issue, and often a claimant can indeed make a claim under the Contractual Remedies Act, there are some circumstances in which a testamentary promise did not give rise to a contractual duty and therefore a claim under the Testamentary Promises Act is appropriate. The courts have set out that the Testamentary Promises Act is for both contractual and moral clai... ... middle of paper ... ...n of the Power of Disposition by Will Bill 1896 Family Protection Act 1955 s3(1) Family Protection Act 1955 s3(1)(d) Family Protection Act 1955 s3(1)(c) Family Protection Act 1955 s3(1A) Allaradice v Allaradice (1909) 29 NZLR 959 at 973 per Edwards J. Allaradice v Allaradice (1909) 29 NZLR 959 at 973 per Edwards J. Re Rush (1901) 20 NZLR 249 (SC) at 253 per Edwards J. Law of Family Protection and Testamentary Promises, Bill Patterson, (4th ed.)Lexis Nexus, 2013, Wellington at 14. Re McGregor (dec’d) [1961] NZLR 1077 (CA). Re McGregor (dec’d) [1961] NZLR 1077 (CA) at 1098. Allardice v Allardice (1910) 29 NZLR 959 (CA). Allardice v Allardice (1910) 29 NZLR 959 (CA) at 972. Property (Relationships) Act 1976 s1C Property (Relationships) Act 1976 s55(1). Property (Relationships) Act 1976 s61(3). Property (Relationships) Act 1976 s88(2).
Herring J., ‘The Human Rights Act and the welfare principle in family law – conflicting or complementary?’ [1999] C.F.L.Q.11 (3), 223-235
Culver, Keith Charles. Readings in the philosophy of law. 1999. Reprint. Peterborough, Ont.: Broadview Press, 2008. Print.
Which law is applied to determine the matrimonial propriety rights of spouse in absence of an ante-nuptial agreement?
“Please tell me: isn’t God the cause of evil?” (Augustine, 1). With this question to Augustine of Hippo, Evodius begins a philosophical inquiry into nature of evil. Augustine, recently baptized by Saint Ambrose in Milan, began writing his treatise On Free Choice of the Will in 387 C.E. This work laid down the foundation for the Christian doctrine regarding the will’s role in sinning and salvation. In it, Augustine and his interlocutor investigate God’s existence and his role in creating evil. They attempt not only to understand what evil is, and the possibility of doing evil, but also to ascertain why God would let humans cause evil. Central to the premise of this entire dialogue is the concept of God, as relates to Christianity; what is God, and what traits separate Him from humans? According to Christianity, God is the creator of all things, and God is good; he is omnipotent, transcendent, all-knowing, and atemporal- not subject to change over time- a concept important to the understanding of the differences between this world and the higher, spiritual realm He presides over. God’s being is eidos, the essence which forms the basis of humans. With God defined, the core problem being investigated by Augustine and Evodius becomes clear. Augustine states the key issue that must be reconciled in his inquiry; “we believe that everything that exists comes from the one God, and yet we believe that God is not the cause of sins. What is troubling is that if you admit that sins come from… God, pretty soon you’ll be tracing those sins back to God” (Augustine, 3).
Batten, D. (2011). Children's rights. In Gale encyclopedia of American law (3 ed., Vol. 2, pp.
In this a party had rescinded from the betrothal contract and had later claimed such a contract was void. The plaintiff’s in the case where awarded compensation by the court for the amount already spent in anticipation of marriage as well as for the mental torture and degradation of social esteem that
Family Law Key Cases, by Helen L. Conway, edited by Jacqueline Martin & Chris Turner, Published by Routledge 2013
In the United Kingdom, the Judicature Act 1873 combined the courts of equity and the courts of common law. As a result, the concept of fiduciary duty also became applicable in common law courts. A fiduciary is a person or institution that has the power to act on behalf of another person in situations that require absolute trust, honesty and loyalty. A fiduciary holds legal as well as ethical responsibilities of a trust with one or more parties. A fiduciary duty requires the highest standard of care at either law or equity. A fiduciary is expected to be enormously loyal to the person to whom he owes the duty (the ‘principal’). According to academics writing, the courts have not yet given a comprehensive definition of a fiduciary. Instead, judicial flexibility has resulted in the courts working on the ground that the central defining features of a fiduciary relationship is where one party is acting in the best interests of the other party and therefore is required to owe a duty of loyalty to the other. Judicial pronouncements of these features can be found in a number of English law cases. In the case of White v Jones Lord Browne-Wilkinson commented that ‘the paradigm of the circumstances in which equity will find a fiduciary relationship is where one party has assumed to act in relation to the property or affairs of another’ .Bristol and West Building Society v Mothew is a significant English fiduciary law and professional negligence case, concerning a solicitor's skill, duty of care and the nature of fiduciary duties. This case is globally recognized for the definition of a fiduciary and the circumstances in which a fiduciary relationship
In today’s evolving law, the phrase ‘possession is nine-tenths of the law’ may be regarded as a slight exaggeration. The one who is in possession of property does have a stronger claim than someone who merely says it belongs to them, however, it is not a...
The Paralegal Professional, A reference to the source of legal information chapter 12, pages 434, 446, and 454.
"The Truth about Children and Divorce." Emery on Divorce. N.p., n.d. Web. 14 May 2014.
Prooftexts 24.1 (2004): 99-115. Ransome, William F. "Above The Sceptred Sway": Retrieving The Quality Of Mercy." Crtica 40.119 (2008): 3-27. Scott, William O. & Co. "Conditional Bonds, Forfeitures, And Vows
McGilvray, Stuart Angus. "Making sense of substantive legitimate expectations in New Zealand Administrative Law." (2007).
In the case of one party promising to give another party £50, it is merely seen as a gift, therefore this is considered unenforceable as a simple contract. This may be justifiable as there is nothing which clearly illustrates that, it is a necessity for a party to give something, in order for them to be able to enforce a promise. This is also known as the “quid pro quo,” it has been similarly illustrated in; Dunlop v Selfridge [1915] AC 847 (HL).
In the light of changes to the law over the past forty five years, in Hyde v Hyde Lord Penzance argued that, ‘’a marriage may be defined as the voluntary union for life of one man and one woman to the exclusion of all others’’, this has enshrined in the Matrimonial Causes Act . This argument requires a critical discussion in the light of the above case including statutes, case law, changes in society, public opinion, Human right and same sex marriage.