As I mentioned in my last article, will-makers generally have “testamentary freedom” to dispose of their assets as they see fit because New Zealand has no formal forced heirship laws. However, within certain prescribed time limits, wills can be challenged under the Family Protection Act 1955, the Property (Relationships) Act 1976, and the Law Reform (Testamentary Promises) Act 1949, which, if successful, in effect means that the court can rewrite a will.

Family Protection Act 1955

This is probably the most contentious of the three Acts, because it allows the court broad discretion to rewrite wills and it has often liberally done so. The Act allows certain persons to apply to the court when they allege that the will-maker has failed to provide properly for them in a will. The classes of persons entitled to claim for provision out of the estate are the deceased’s:

  • spouse or civil union partner
  • de facto partner who was living in a de facto relationship with the deceased at the date of his death
  • children
  • grandchildren
  • stepchildren who were being, or were legally entitled to be, maintained wholly or partly by the deceased immediately before his death
  • parents of the deceased provided that the parent was being, or was legally entitled to be, maintained wholly or partly by the deceased immediately before his death; or at the date of the claim, no spouse, civil union partner or de facto partner or child of a marriage, civil union or de facto relationship of the deceased is living.

This Act is based on the premise that a will-maker has a moral duty to make adequate provision for the proper maintenance and support of the above people out of his or her estate. “Support” is not confined to financial provision but extends to recognition of the claimant having belonged to the family or having been part of the overall life of the deceased. The moral duty is tested against the standards of a deceased who is just and wise. A court will look at a range of factors in deciding whether the moral duty has been met including the deceased’s reasons for his or her dispositions. If the court decides the moral duty has failed, it can order such provision out of the estate as it thinks fit.

Property (Relationships) Act 1976

Under this Act, the claimant against an estate is the deceased’s spouse, civil union partner or de facto partner (where, generally, the facto relationship with the deceased was more than three years’ duration). A claimant applies for a division of relationship property, instead of receiving the gifts he or she is entitled to under the deceased’s will (or intestacy). There is a presumption under this Act that all property that was owned by the deceased at his or her death, in the absence of evidence to the contrary, is relationship property. Generally, relationship property will be split equally. So the survivor can generally elect to take either 50% of the estate by claiming under this Act, in which case the remainder of the estate is distributed in accordance with the will (or intestacy) as if the survivor had already died, or otherwise he or she will take under the deceased’s will (or intestacy).

Law Reform (Testamentary Promises) Act 1949

Under this Act claims are made against an estate where the claimant provided services to or performed work for the deceased in his or her lifetime and the deceased promised to reward the claimant for the work or services by making some provision in his or will for the claimant and failed to do so.

What can you do?

Careful and clever thought and estate planning can help to minimise the chances of a claim being made under these Acts and, indeed, the chances of a claim succeeding. Such claims can be costly for your estate, delay its distribution and tear families and friendships apart. You should talk to your lawyer if you have any concern about such claims.

In this second article, Juliet Moses a partner at the Auckland-based boutique law firm Taylor Grant Tesiram discusses claims that can be made against wills.

This article first appeared in Teruah May 2011

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