Unequal legacy poses chal­lenge


It is of­ten thought that your will can be chal­lenged as be­ing ‘‘un­fair’’ be­tween the var­i­ous mem­bers of the fam­ily if you do not leave roughly equal lega­cies to each sim­i­lar claimant, for ex­am­ple your chil­dren.

How­ever, ‘‘fair­ness’’ is not the test the courts ap­ply when de­cid­ing on a chal­lenge to a will. A re­cent case em­pha­sises the lim­i­ta­tions of a court sys­tem to achieve a ‘‘fair’’ re­sult.

In a Fam­ily Court de­ci­sion two of three sur­viv­ing chil­dren made a claim un­der the Fam­ily Pro­tec­tion Act against their mother’s will. They claimed that their mother had breached her moral duty to them by leav­ing the bulk of her es­tate - the fam­ily farm - to their brother, her only son.

The Fam­ily Pro­tec­tion Act al­lows a court to make pro­vi­sion from an es­tate in favour of cer­tain fam­ily mem­bers when a de­ceased’s will fails to make ad­e­quate pro­vi­sion for their proper main­te­nance and sup­port.

These pro­vi­sions may even re­quire unequal shar­ing in par­tic­u­lar cir­cum­stances. For ex­am­ple, if one child is se­verely hand­i­capped and there­fore re­quires more re­sources to look af­ter them it would usu­ally be the moral duty of the will maker to make a larger pro­vi­sion for them than other sib­lings in bet­ter cir­cum­stances.

In the case, the Fam­ily Court up­held the sis­ters’ claim, and di­vided the farm in equal shares be­tween the three sib­lings. On ap­peal the High Court re­versed the Fam­ily Court de­ci­sion, find­ing that the judge had erred in her ap­pli­ca­tion of the law in re­la­tion to the amount of re­lief.

The High Court held that the judge had essen­tially rewrit­ten the will based on the con­cept of fair­ness. In do­ing so, the Fam­ily Court had in ef­fect dis­re­garded the de­ceased’s wishes, in favour of a pre­sump­tion of equal shar­ing.

The High Court noted that the fo­cus must not be on what the judge thinks is ‘‘fair’’, but rather on what pro­vi­sion is nec­es­sary to pro­vide for an ap­pli­cant’s proper main­te­nance and sup­port, tak­ing into ac­count their fi­nan­cial po­si­tion and their en­ti­tle­ment to be recog­nised as a mem­ber of the fam­ily.

The High Court awarded one sis­ter 30 per cent and the other 25 per cent of the es­tate to re­flect the care and sup­port they gave to their mother un­til her death, the hard­ships suf­fered by them through­out their child­hood, and their fi­nan­cial need.

This left the brother with a 45 per cent share.

It is im­por­tant to re­mem­ber that there is no pre­sump­tion of equal shar­ing amongst chil­dren as peo­ple are at lib­erty to do what they like with their es­tate, and

‘‘These pro­vi­sions may even re­quire unequal shar­ing in par­tic­u­lar cir­cum­stances, for ex­am­ple if one child is se­verely hand­i­capped.’’

can treat their chil­dren dif­fer­ently so long as any pro­vi­sions made dis­charge their moral duty.

Chil­dren treated un­equally un­der a will, even by be­ing left out al­to­gether, can­not sim­ply as­sume that they have been treated ‘‘un­fairly’’ and will be able to make a suc­cess­ful claim. It comes down to the par­tic­u­lar cir­cum­stances of each es­tate, and each claimant, as this case clearly de­mon­strates.

If you have been left out of a will or are con­sid­er­ing chal­leng­ing a will, see your lawyer or le­gal ad­vi­sor for ad­vice.

Col­umn cour­tesy of RAINEY COLLINS LAWYERS phone 0800 733 484 www.rain­ey­collins.co.nz. If you have a le­gal in­quiry you would like dis­cussed in this col­umn please email Alan on aknowsley@rain­ey­collins.co.nz.

In last week’s col­umn on leaky home claims I re­ferred to the fi­nan­cial as­sis­tance pack­age. Un­for­tu­nately, that pack­age is no longer avail­able. I should also clar­ify that a claim can only be made to the Weather­tight Homes Tri­bunal af­ter an ap­pli­ca­tion to the Weather­tight Res­o­lu­tion Ser­vice for an as­ses­sor’s re­port and the claim is found to be el­i­gi­ble.

Chil­dren treated un­equally un­der a will can­not sim­ply as­sume that they have been treated ‘‘un­fairly’’.

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