Wills and Estates
Defending a family protection claim in New Zealand involves challenging the claim made by a family member who is seeking a greater share of a deceased person's estate. A family protection claim is typically made under the Law Reform (Testamentary Promises) Act 1949 or the Family Protection Act 1955. The purpose of such claims is to ensure that family members who were dependent on the deceased or had a close relationship with them are provided for, even if they are excluded from the will or given insufficient provision.
If you are defending a family protection claim, you will need to address the legal and factual basis of the claim. Here are key strategies and considerations for defending a family protection claim in New Zealand:
1. Challenge the Eligibility of the Claimant
The first line of defense is to challenge whether the claimant is eligible to bring a claim under the Family Protection Act. Generally, the following family members have standing to claim under the Act:
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Spouses or partners
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Children (including adopted children)
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Whāngai (adopted or informal children in Māori tradition)
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Parents (if the deceased has no surviving spouse or children)
If the claimant does not fall into one of these categories, they may not have standing to pursue a family protection claim.
2. Challenge the Claimant’s Need
One of the primary considerations in a family protection claim is whether the claimant can show a need for financial support. You can defend the claim by arguing that the claimant does not have a genuine financial need, or that their needs are already adequately met through other means (e.g., they are financially self-sufficient or have sufficient assets).
Key factors to consider include:
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The claimant's income, assets, and financial situation
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Whether they were financially dependent on the deceased during their lifetime
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Whether the claimant has other sources of support (e.g., from other family members or their own earnings)
3. Argue the Testator’s Wishes
You can defend a claim by emphasizing the importance of the testator’s wishes. In New Zealand, the courts generally respect the deceased’s intentions, particularly when there are valid reasons for the way the estate has been distributed.
However, the court can still override the will if it considers that the testator’s wishes did not make adequate provision for a person who was entitled to such provision (i.e., a spouse or child). You may argue that the testator had specific reasons for excluding the claimant, such as estrangement or the claimant’s financial independence.
Key points include:
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Evidence that the testator deliberately chose not to provide for the claimant (e.g., through express statements or prior discussions)
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The relationship between the claimant and the deceased, such as whether the claimant was estranged or had been provided for in other ways (e.g., gifts during the deceased's lifetime)
4. Address the Adequacy of the Provision
If the claimant is challenging the will because they believe they were not adequately provided for, you may argue that the provision made for them is reasonable given the deceased’s financial circumstances and the provision made for other beneficiaries. In this case, you will need to demonstrate that:
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The deceased's estate was distributed equitably in line with their intentions and financial capacity
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Other beneficiaries (e.g., the spouse or other children) are also entitled to a fair share, and the estate's assets are insufficient to meet all claims
5. Rebut the Claimant's Contribution or Relationship with the Deceased
Family protection claims often rest on the argument that the claimant had a close relationship with the deceased or was financially dependent on them. In defending the claim, you may challenge the extent of the claimant’s relationship with the deceased, their level of dependency, or their role in the deceased’s life.
For example, you can argue:
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The claimant was not dependent on the deceased or did not contribute to their welfare
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The claimant had little to no contact with the deceased or was estranged
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The claimant had sufficient financial support from other sources
6. Seek Settlement or Mediation
Many family protection claims are settled out of court, as litigation can be costly and emotionally damaging for the parties involved. If possible, consider proposing mediation or settlement negotiations to resolve the dispute without going to trial. A negotiated settlement might allow for a fair distribution of the estate while preserving family relationships.
7. Gather Evidence
It is essential to gather evidence to support your defense. This may include:
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Statements or written evidence from the deceased (e.g., letters, notes, or a previous will)
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Financial records showing the claimant’s assets and income
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Witness testimony from family members, friends, or others who can provide insight into the relationship between the deceased and the claimant, and the deceased’s intentions
8. Court Considerations
If the case proceeds to court, the judge will consider various factors under the Family Protection Act. These include:
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The claimant’s relationship with the deceased
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The financial and moral obligation of the deceased to the claimant
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The size and nature of the estate
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The claims of other beneficiaries
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The deceased’s reasons for distributing the estate in the way they did (if known)
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The overall fairness of the distribution
In defending the claim, your role is to show that the deceased’s estate plan is fair and reasonable given the circumstances, and that the claimant’s demands are excessive or unfounded.
Conclusion:
Defending a family protection claim in New Zealand requires understanding the legal framework around the Family Protection Act and the specific facts of the case. You should focus on challenging the claimant’s eligibility, need, and the fairness of the distribution, and make sure to gather strong evidence to support your position. If possible, negotiating a settlement outside of court can often be a more effective way to resolve family disputes over an estate. If you would life further information please contact me on pd@blomfieldlegal.com
Probate in New Zealand is the legal process where a deceased person's will is validated, and their estate is administered. The executor named in the will applies to the High Court for probate, which grants them authority to manage the estate's assets, settle debts, and distribute the estate according to the will. If there is no will, the court appoints an administrator to handle the estate. Would you like to delve into the steps involved in the probate process?
The probate process in New Zealand involves several key steps, which ensure that the deceased person's assets are properly distributed according to their wishes or, if there’s no will, in accordance with New Zealand's laws of intestacy. Here's an overview of the key steps involved:
1. Determine Whether Probate is Needed
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Probate is typically required when the deceased has left a will, and their assets include significant property (like real estate or bank accounts) that needs to be transferred to beneficiaries.
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If the deceased only had small assets, the family may be able to distribute these without probate (through a process known as "letters of administration" or "small estate procedures").
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If the deceased did not leave a will (intestate), the court may appoint an administrator to manage the estate.
2. Locate the Will and Gather Information
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Find the will: The first step is to locate the deceased person's will, which will identify the executor (the person responsible for carrying out the terms of the will).
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Assets and liabilities: The executor must gather information about the deceased's assets (bank accounts, property, shares, etc.) and liabilities (debts, mortgages, bills).
3. Apply for Probate
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The executor named in the will applies to the High Court for probate. If there is no will, an interested party (usually a family member) may apply to be appointed administrator of the estate.
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The application involves submitting the following documents to the court:
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The original will (or a copy if the original is unavailable, with proof of why it's missing).
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Death certificate (to prove that the person has passed away).
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Application form (Form 17) for probate.
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Affidavit from the executor, stating they are entitled to apply and confirming they will administer the estate properly.
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A list of assets and liabilities (sometimes required by the court).
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The application for probate is filed with the High Court, and if the will is straightforward, probate can usually be granted without the need for a hearing.
4. Grant of Probate
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Once the court is satisfied that the will is valid and all necessary documents have been submitted, they will issue a Grant of Probate. This grants the executor the legal authority to manage and distribute the estate.
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With probate, the executor can:
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Access and manage the deceased's bank accounts and assets.
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Sell property or transfer ownership of assets (such as real estate or shares).
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Settle any outstanding debts, taxes, or funeral costs.
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Distribute the assets to the beneficiaries named in the will.
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5. Pay Debts and Taxes
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Before distributing the estate, the executor must settle any outstanding debts, including funeral expenses, taxes, and any other liabilities the deceased may have had.
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In some cases, the executor may need to file a tax return on behalf of the deceased, especially if there is income earned after death or capital gains on the estate’s assets.
6. Distribute the Estate
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Once all debts and taxes have been paid, the executor can begin to distribute the assets to the beneficiaries according to the terms of the will. If there is no will, the estate will be divided in accordance with New Zealand's laws of intestacy, which are set out in the Administration Act 1969.
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If the will specifies certain bequests (such as specific amounts of money, items, or property to individuals), these are distributed first. Any remaining assets are divided as per the will.
7. Finalising the Estate
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After all debts have been paid and assets distributed, the executor files a final report with the High Court and formally closes the estate.
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The executor may also need to prepare a final set of accounts showing how the estate was administered and distributed.
What Happens if There is No Will (Intestacy)?
If someone dies intestate (without a valid will), New Zealand law sets out who is entitled to the deceased's estate:
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Spouse or partner: If the deceased was married or in a civil union, the surviving spouse or partner will usually inherit a portion of the estate.
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Children: If there is no surviving spouse or partner, the estate will be divided among the children.
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The laws of intestacy continue to determine how the estate is divided if there are no spouse, partner, or children, with priority given to other close family members like parents or siblings.
In cases of intestacy, an administrator (usually a close family member) will be appointed by the court, and the distribution of assets will follow the statutory rules.
Summary of Key Steps in the Probate Process:
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Locate the will (if there is one) and identify the executor.
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Apply for probate with the High Court (submit necessary documents).
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Obtain the Grant of Probate (if the will is valid).
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Settle debts and taxes.
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Distribute the estate according to the will (or intestacy rules if there’s no will).
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Close the estate and file a final report with the High Court.
Timeframe
The probate process can take several months, depending on the complexity of the estate, the number of assets, whether there are disputes among beneficiaries, and how long it takes to settle debts and taxes. A straightforward estate could be settled in 6–12 months, while more complex estates may take longer. Any issues please contact me on pd@blomfieldlegal.com
A professional negligence claim against a lawyer in New Zealand for negligence in advising on a will involves asserting that the lawyer failed to meet the required standard of care in providing legal advice or services related to the drafting, execution, or administration of a will. To succeed in such a claim, the claimant must prove the following key elements:
1. Duty of Care
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The lawyer must have owed the client a duty of care. In the context of will preparation or administration, a lawyer generally owes a duty to act competently and diligently in advising the testator (the person making the will) and ensuring that the will is legally valid, properly executed, and reflects the testator's intentions.
2. Breach of Duty
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The lawyer must have breached their duty of care. This could occur if the lawyer:
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Fails to ensure the will is validly executed (e.g., failing to comply with the formal requirements for witnesses).
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Fails to provide competent advice on the testator’s wishes or the legal consequences of certain bequests.
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Fails to advise on issues such as the capacity of the testator to make the will, or whether the will may be challenged in the future (e.g., by a disinherited family member).
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Fails to make provisions for estate administration or tax implications.
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3. Causation
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There must be a causal link between the lawyer’s negligence and the harm suffered. In the case of a will, this typically means proving that the lawyer's error led to an outcome that would not have happened if the lawyer had acted correctly. This could involve:
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The testator’s intentions not being properly reflected in the will.
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A will being invalid due to errors in execution or legal requirements.
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Financial loss or harm caused to beneficiaries as a result of the lawyer’s negligence.
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4. Damages
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The claimant must show that they have suffered damages as a result of the lawyer’s negligence. In the case of a will, this could mean that the intended beneficiaries were disinherited, or that a challenge to the will led to a reduced inheritance, legal costs, or prolonged litigation.
Example Scenarios for Negligence Claims:
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Invalid Will: The lawyer drafts a will but fails to ensure that it meets the formal execution requirements (e.g., witnesses, signatures), making the will invalid. As a result, the testator’s wishes are not followed, and their estate is distributed according to the laws of intestacy instead.
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Failure to Advise: A lawyer advises a client on creating a will but fails to mention important legal issues, such as the possibility that a particular bequest could be contested, or the implications of certain bequests under New Zealand’s inheritance laws (e.g., claims for family protection or maintenance under the Family Protection Act 1955 or the Testamentary Promises Act 1949).
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Mistakes in Will Content: The lawyer makes a mistake in drafting the will, such as listing the wrong beneficiaries or failing to account for a specific asset, causing a dispute or litigation after the testator’s death.
Legal Process for Claiming Negligence:
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Filing a Claim: The claimant typically files a claim in the District Court or High Court, depending on the complexity and value of the case. The claim would assert that the lawyer breached their duty of care and that this led to the claimant's financial loss.
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Expert Evidence: It is common in professional negligence claims to rely on expert evidence, such as from other legal practitioners, to establish the standard of care expected and how the lawyer’s actions fell short of that standard.
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Defence: The lawyer might argue that they acted appropriately, that the will was valid, or that there was no loss suffered as a result of any mistakes. They may also argue that the claimant's damages were not caused by the lawyer’s actions, or that they followed the testator’s instructions as best they could.
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Remedies: If successful, the claimant may be entitled to damages, which could include the costs of remedying the lawyer's mistake, the value of any lost inheritance, and any legal costs incurred in rectifying the issue (such as contesting the will or going to court).
Time Limits:
In New Zealand, claims for professional negligence are subject to time limits, generally governed by the Limitation Act 2010, which typically provides a 6-year period from the date of the negligent act or omission. However, there can be exceptions, particularly where the claimant was unaware of the negligence until a later date.
Conclusion:
A professional negligence claim against a lawyer in New Zealand for mistakes made in advising on a Will, will depend on proving that the lawyer breached their duty of care, caused harm to the client or beneficiaries, and that damages resulted from that breach. Legal action can be complex and may require the assistance of an expert to assess whether the lawyer's actions fell below the standard expected in the circumstances. Any issues contact me on pd@blomfieldlegal.com
n New Zealand, if you die intestate (without a valid will), the distribution of your estate will be determined by the Administration Act 1969. The rules for intestacy depend on your family circumstances at the time of your death. Here's a breakdown of how your estate will be divided and the advantages of having a will:
How Your Estate is Divided if You Die Intestate
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If You Have a Spouse or Partner:
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If you have a spouse or civil union partner and children, the spouse/partner will receive:
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The first $155,000 (as of 2023) of your estate, plus one-third of the remainder. The children will share the remaining two-thirds equally.
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If you have a spouse or civil union partner but no children, the spouse/partner will inherit the entire estate.
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If you have a de facto partner (unmarried), the law treats them the same as a spouse for the purposes of intestate succession, provided you had lived together in a stable, long-term relationship.
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If You Have No Spouse/Partner but Have Children:
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If you die without a spouse or partner, your children will inherit the estate equally. If one of your children has died before you, their share will be distributed among their children (your grandchildren).
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If You Have No Spouse/Partner or Children:
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The estate will go to other family members in the following order:
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Parents (if living).
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If no surviving parents, the estate will go to siblings (if living).
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If no surviving siblings, it may pass to other relatives (e.g., grandparents, uncles, aunts, cousins).
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If no relatives can be found, the estate may eventually go to the Crown (the government).
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Advantages of Having a Will
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Control Over Your Estate:
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A will allows you to specify exactly how your assets are distributed according to your wishes, rather than having the government decide based on default rules. This can be especially important if you want to provide for specific people or causes, such as children from a previous relationship, charities, or friends.
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Appointing Executors and Guardians:
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A will lets you choose an executor—the person responsible for managing your estate, ensuring debts are paid, and distributing assets. Without a will, the court will appoint someone, which may not be the person you would have chosen.
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If you have minor children, you can appoint a guardian in your will. This is crucial to ensure your children are cared for by someone you trust.
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Avoiding Legal Disputes:
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A will helps reduce the potential for family disputes over your estate. Without a clear, legally binding document, relatives may contest the distribution of assets, leading to conflict and delays.
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Tax and Financial Efficiency:
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In some cases, a will can help reduce the tax burden or ensure that certain financial steps (like paying off debts) are carried out efficiently.
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Protecting Your Wishes for Specific Assets:
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If you have valuable or sentimental property (such as family heirlooms, art, or jewellery), a will ensures that these items go to the people you want to receive them.
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Updating as Life Changes:
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You can revise or update your will whenever your circumstances change—whether that’s through marriage, the birth of children, or acquiring significant assets. This flexibility ensures that your estate plan remains relevant.
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Conclusion
While intestacy laws provide a default structure for dividing your estate, they may not reflect your personal wishes or circumstances. Having a will allows you to ensure your wishes are carried out, reduces the chance of family conflict, and can give you peace of mind that your loved ones will be taken care of according to your specific instructions. If you don't have a will and die intestate, it can create unnecessary complications and stress for your family, who may be forced to navigate the legal process without clear guidance.
Families in New Zealand, like elsewhere, may fight over inheritances for a variety of reasons. Some of the key factors include:
1. Unequal Distribution of Assets
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When a deceased person's estate is divided in a way that seems unfair to some family members, it can lead to conflict. For example, if a parent leaves more assets to one child over another, or if a sibling feels they were not given an equal share, this can cause resentment and disputes.
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This might also happen if certain assets, such as a family home or a family business, are passed on to one family member, leaving others feeling excluded or disadvantaged.
2. Lack of Clear Estate Planning
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If a person does not have a well-drafted will or estate plan, it can create confusion and disagreement about how their assets should be divided. In cases where the will is unclear, vague, or non-existent, relatives may interpret the deceased's wishes differently, leading to conflicts.
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Even if there is a will, it may not cover all assets, or the will may be contested by family members, claiming it doesn't reflect the deceased's true intentions.
3. Competing Claims
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In some cases, extended family members, such as stepchildren, may feel they are entitled to a share of the estate, especially if there was a close relationship with the deceased. This can lead to disagreements among siblings or other relatives who feel they should receive more or that others are "taking advantage."
4. Blended Families and Stepchildren
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New Zealand has a significant number of blended families, where parents remarry or enter into de facto relationships after a divorce. The presence of stepchildren or children from previous relationships can create complex inheritance issues. For example, a child from a previous relationship may feel entitled to a share of an estate, while children of the new partner may argue that they should inherit everything.
5. Emotional Attachments to Assets
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Family members may have strong emotional ties to certain belongings or properties, such as a family home, heirlooms, or specific items passed down through generations. These attachments can lead to disagreements, especially if the deceased did not specify who should inherit these items or if the item is seen as an important part of family history.
6. Debt and Financial Pressure
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Sometimes, inheritance disputes are driven by financial pressures. Family members may feel they are entitled to a larger share of the estate because they need the money, or they may argue that other members should be responsible for paying off debts or expenses related to the estate.
7. Family Dynamics and Past Grievances
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Deep-seated family tensions, old grudges, and unresolved conflicts can surface during the process of inheritance. Past disagreements, rivalries, or emotional wounds may influence how family members perceive their share of the estate and lead to further disputes.
8. Claims Under the Family Protection Act 1955
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New Zealand has laws that allow family members (such as children, spouses, or dependents) to challenge a will if they feel they have not been adequately provided for. This can lead to disputes in cases where a will excludes a family member or provides them with less than they believe they are entitled to.
9. Mediation and Legal Costs
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When family members cannot resolve their differences amicably, legal action may be taken. The process of contesting a will or arguing over an inheritance can be time-consuming, expensive, and emotionally draining. The costs of legal proceedings can sometimes exacerbate tensions and lead to even more conflict.
10. Cultural and Generational Differences
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New Zealand is a multicultural society, and differing cultural views on inheritance and family obligations can influence how families approach estate distribution. For example, Māori customs around land and inheritance can conflict with legal norms or expectations. Additionally, generational differences between older and younger family members can create misunderstandings or disagreements about the fairness or appropriateness of an inheritance.
In short, inheritance disputes in New Zealand often stem from a combination of personal, emotional, financial, and legal factors. Clear communication and proper estate planning (such as having a legally sound will and regular reviews) can help mitigate many of these issues, but when there are significant differences in expectations or perceptions of fairness, conflicts are not uncommon.