So you’ve prepared a will and feel satisfied your wishes for distribution of your assets are locked in stone and will be carried out when you die. How sure are you it won’t be contested? Every year in New Zealand there are over 300 contested wills that end up in court. That’s just the tip of the iceberg, as a significant number of disputed wills are settled out of court.
It could also become an increasing issue as property prices continue to rise in some areas, bumping up the value of assets in the estate. Generally, the larger the value of assets in the will, the more potential there is for a disgruntled party to contest a will, as contesting a will is not cheap. If you have a rural business the division and realisation of those assets can be complicated so it’s best to do the thinking well in advance.
The three main Acts under which a will can be challenged are:
- The Family Protection Act 1955 – certain family members can contest a will if they think the will-maker has breached their moral duty and have not adequately provided for them.
- The Property (Relationships) Act 1976 – allows a surviving spouse or defacto partner to choose to have the provisions of the Act apply rather than the will and apply for a division of relationship property. The Act gives this person’s claim precedence over any other person’s claim who has a beneficial interest under the will.
- The Law Reform (Testamentary Promises) Act 1949. This is where the deceased promised someone they would get something in the will as a reward for services rendered. For example, the will-maker promises the neighbour the tractor when he dies for assistance with managing the farm. The claimant has to show that they provided the services and the will-maker made an express or implied promise to reward the claimant when the will-maker dies.
To reduce the chance of contestability, its good practice to eliminate as many potential legal challenges as you can, which means complying with each Act.
Circumstances change. The relationships at the time of death may be significantly different from two years prior. For example, the daughter’s marriage may have ended and the son may have won lotto. If you do wish to allow for unequal division of your estate amongst your children, there are ways to write that into your will so that your intent is clear. If you record your reasons and store that with your will it also gives a court the ability to see the rationale behind your decisions and take that into account.
The bottom line is the law can supersede your wishes. So, think carefully about what you’d like to happen and consult your lawyer to prevent your will being challenged. Finally, revisit your will at least every five years or when your or your family’s personal or businesses circumstances change.
For more information contact Tessa North Solicitor at Pitt & Moore
DDI. 03 545 6716