Claims Against Estates

In New Zealand, there are three pieces of key legislation that govern the way claims can be brought on an estate. That is the Property (Relationships) Act 1976 (“PRA”), Family Protection Act 1955 (“FPA”) and the Law Reform (Testamentary Promises) Act 1949 (“TPA”). 

Property (Relationships) Act 1976

If your spouse passes away, you have two options under the PRA;

• Option A which is to make an application to the court under the PRA for a division of relationship property, or
• Option B which is to elect not to make an application under the PRA for division of relationship property but to accept the provision made you have been made under your partner or spouse’s will and in any other way by the deceased.

Under the PRA, a qualifying spouse (marriage or de facto) is entitled to 50% of all relationship property. Relationship property is all property that was accumulated during the relationship and usually includes the family home, any other real estate that the parties have purchased together, joint bank accounts, superannuation, income, insurance policies.

If you feel you have been left out of a will by your spouse, or you have been left less than 50% of the relationship property, then it is a good idea to get some legal advice about what you can do. It will be important to disclose whether a contracting out agreement exists as well as any Trust property.

Family Protection Act 1955

Under the Family Protection Act, the law recognises there is a duty to provide for specific people. Many clients are surprised to find out that they have a moral obligation under the law to provide for their children in their wills, even if they are adults, financially independent or even estranged.

A claim can be brought by a child that has not been adequately provided for, regardless of the child’s circumstances, age or relationship with the deceased. Adoption, stepchildren and Whangai children all have differing status under the Act so it is important that you seek advice on this before making a claim.

Decisions in the New Zealand courts have shown that children may be entitled to receive up to 10-15% of the value of the estate of their parent, and even more so if there has been mistreatment of the child by the parent in earlier years. It is important to note that adequate provision does not necessarily mean equal provision (if you have more than one child), nor does it mean significant provision.

Other people that can make a claim include a spouse, who can claim for spousal maintenance under the FPA and in some circumstances, financially dependent parents can make a claim on an estate for maintenance under the FPA, if they have not been provided for adequately in the Will.

Law Reform (Testamentary Promises) Act 1949

Although perhaps not as commonly known, anyone can make testamentary promises claim if they have been promised something in a will in return for services rendered or work done, and the promise was not kept. An example might be when someone is ill and you have cared for them or looked after their property and they have promised to gift something for this on their death. If their will does not provide you with the gift, then you could make a testamentary promises claim. You must be able to prove the promise was made, expressly or implied, and that services were rendered by you in exchange for that promise. These claims can be difficult to prove, but may be of relevance to you if you have provided services to someone in and they have made promises to you during their lifetime.

Seeking advice

The time frames to make a claim under each Act differs, so it is important that you seek prompt legal advice if you are thinking about making a claim.

We can provide initial advice on your position and options to proceed. If a settlement can be reached between the interested parties, we can prepare a Deed of Family Arrangement recording the settlement agreement. It is important that all parties get independent legal advice before signing a Deed of Family Arrangement. If litigation is the only way to proceed, we can also assist with appointing a barrister to act in court on your behalf. To avoid a claim being made on your estate, you can also get in touch with us for advice on the best way to structure your will and other asset planning documents.

There had been talk about changes to inheritance laws during the second half of 2023 and this has been summarised in one of our latest articles.

Tammy and the Trust Team are here to help with all the legal aspects of claims against estates.

Contact us to discuss how we can help you.

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