Family protection and wills

The wise and just will-maker

I need to make a will but I do not want to leave my estate to my son as I never see him. I also do not want to leave my estate to my stepchildren. What can be done?

In some parts of the world, a will-maker can leave their assets to whomever they want, whether that be their children, a distant relative or to the local cats’ home. In New Zealand, however, this is currently not the case.

The Family Protection Act 1955 (FPA) states that, as a will-maker, you have a ‘moral duty’ to provide for the ‘proper maintenance’ of your family. If you leave a family member out of your will, and they feel you have not adequately provided for them, they can try and claim against your estate.

Typically, claimants are spouses or partners, children, and sometimes grandchildren. In some circumstances, stepchildren or parents who relied on, or were financially maintained, by the will-maker in some way may make a claim.

Does ‘fairly’ mean ‘equally’?

It is not difficult to imagine the problems caused when siblings are treated differently by their parents. Making sure that someone in your family has been provided for adequately and fairly does not mean they must be treated exactly the same as other beneficiaries – understandably a common misconception. A successful challenge can result in the claimant being awarded a remedy, the size and nature of which can vary quite substantially.

Blended families can throw more complications into the pot and can prove tricky to navigate. Having said that, family protection claims are often made, not for financial gain, but because the claimant feels hurt, or inadequately acknowledged, by the will-maker.

If you plan to exclude someone or treat them differently to someone else in your will, you should reflect on the possibility of your will being challenged, and the heartache and anguish (and significant legal costs) that can cause to those you leave behind.

Setting out the reasons for your decision to make an unequal gift can sometimes be enough to fend off misunderstandings and, ultimately, claims against your estate. You can address the situation either in a separate document to your will or by talking with your beneficiaries before signing your will.

Challenging a will is a big step when family relationships are on the line. Arguments about loved ones’ estates can, and sometimes do, rip even the happiest families apart, causing permanent rifts.

Forewarned is forearmed

There are ways you can help prevent future challenges against your will. When making your will we will talk with you about how you want to distribute your estate and the reasons for it. If you are considering an unequal distribution, you could gift some property before you die or transfer property into trusts. Get your will sorted while you can.

In summary, it is important you know that you do not have absolute control of your assets even after your death. Your will could be challenged so make sure you have given serious thought to what you want your will to achieve and take advice on how you can do that successfully.

Changes ahead for succession law

The government has acknowledged the difficulties of the FPA, section 8 of the Property (Relationships) Act 1976 and other statutes that govern who inherits a person’s property when they die. In December 2019, the Law Commission was asked to review this country’s succession law which is expected to take about two years.

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