Commentary on Professor Sutton's paper

Abstract

The author provides commentary on Professor Sutton's paper presented in the symposium on Family Property, Law and Policy found in this issue of the Victoria University of Wellington Law Review (RJ Sutton "Law Commission succession project: Communal family property?" (1995) 25 VUWLR 53). The commentary comes from discussions with a group of six practitioners drawn from both family law litigators and property lawyers interested in family property matters. The article first discusses how the concept of communal property can earn legitimacy. The author then agrees with Professor Sutton in that New Zealand does not have a dynastic approach to property, as well as noting the broader definition of "family" adopted in New Zealand. The author believes that, increasingly, there will be a trend that the larger part of the wealth of more substantial testators will not find its way into the probated estate of that testator. It is concluded that the concept of communal family property is a useful analytical technique in consideration of new succession law regimes, but would caution against a reform structure which is driven by desire for pure application of this philosophy.