People November 6, 2015

WHERE THERE’S A WILL…. IT COULD BE CHALLENGED

There’s actually very little that a will needs to make it valid. It has to be printed or written out, signed and dated, plus witnessed by two people who are not named in it. However, being valid does not necessarily mean that it is legally binding.

 

It’s an interesting fact that around five per cent of the wills that are administered in New Zealand each year are contested. The bulk of these involve wills that left unequal shares to children or involve second families — with the children of a former marriage claiming against a surviving step-parent. There was an unusual case of a South Auckland farmer who left $1 million to his farm dogs, thereby disinheriting his wife and two sons from a previous marriage. His widow and sons contested the will and under the Family Protection Act, the judge was able to overrule the terms of the farmer’s will and include the surviving family.

 

Writing a will is an important moment in time, when the writer needs to take stock without any undue influence. It requires principled thought; preferably with advice from an unbiased expert, so it has the best potential to stand up to legal scrutiny should it ever be contested. This is where the benefit of good advice comes in rather than writing it yourself or doing it online. Make a mistake and there is the risk of the will being over-turned at a future date.

 

Three laws to be mindful of when writing a Will are:

 

  • The Family Protection Act enables family members, usually a spouse, child or grandchild but sometimes parents and step-children, to challenge a will if it failed to make adequate provision for their maintenance and support. The court then considers if there has been a breach of ‘moral duty’ by the will-maker and takes into account the needs of the claimant, the size of the estate and any other competing moral claims.

 

  • The Property (Relationships) Act is about how property acquired during a relationship is divvied up. Has the surviving spouse or partner been unfairly treated in the will? If so, they might be able to apply for their half share under this act.

 

  • The Testamentary Promises Act is about governing promises so they are kept. Did the will-maker break a promise to provide in their will as a reward for services or work? If so, a caregiver (who may have been promised a lump sum payment or gift in a will in lieu of wages) can get it enforced.

 

A will should be updated whenever there’s a significant change in your life, whether it’s buying a home, having kids, entering into a new relationship or ending an old one. If you marry or remarry, any will you had prior to marriage is automatically cancelled (unless you’ve made provision in your will for this happening). However, if you and your significant other separate ,your will remains the same until you divorce.

 

Even if you’re in an established relationship your estate may not automatically go to your partner. In fact, if you have been together for less than three years and you die without a will, your partner may get nothing. With fewer New Zealanders getting married, more people entering into de facto relationships and more people getting divorced each year, there’s greater potential for complicated estate distribution outcomes, so it’s essential to get good advice when writing your will.

 


 

For more information go to publictrust.co.nz or call 0800 371 471.


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