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Frank Love v Patrick Scannell [2016] NZFC 8114

Published 15 February 2017

Validity of contracting out agreement — serious injustice — occupation order — Property (Relationships) Act 1976, ss 21, 21J, 27 and 61 — Wells v Wells [2006] NZFLR 870 (HC). It was determined that the property in question was relationship property, and that a contracting out agreement was valid and should be interpreted as including reference to an application under s 61(2). As a result of that interpretation, the applicant would be be barred from making an option A election under s 61 unless serious injustice would be caused, and the Court set aside the agreement under s 21J. As serious injustice did not exist having considered the principles in "Wells", it was not appropriate to set aside the contracting out agreement. An occupation order was then made in the applicant's favour, although for a defined period of time to allow the beneficiaries under the will to receive their entitlements in due course. Judgment Date: 20 October 2016.