Can You Cut Someone Out of Your Will?

It’s surprisingly difficult to completely cut individual family members out of your estate, as the team at Morrison Kent explains.

You may be surprised to learn that it is very hard to completely write certain family members out of your will under New Zealand law. Testamentary freedom is not what people think it is. There are several grounds on which an estate can be contested, but the key ones are:

• Under relationship property law (Property (Relationships) Act) a surviving spouse or partner can apply for a division of relationship property if they are not satisfied with what they have been left under the will.

• The Family Protection Act allows certain family members who have not been adequately provided for under a will to seek further provision from an estate. • The Law Reform (Testamentary

Promises) Act provides a mechanism for people to seek provision from an estate if the deceased promised to reward them from their estate for a service undertaken while they were alive, but failed to record this in their will.

It’s essential that you seek early advice when challenging a will or estate. There are time limits to consider and several ways to settle these issues without recourse to court proceedings.

Partner claims on an estate: Relationship property law

A spouse or de facto partner of the deceased may make a claim under this Act – sometimes more than one claim at once. The effect of a successful relationship property claim is that the surviving spouse’s share of the property comes out of the estate completely, leaving less to be divided between the beneficiaries of the will.

If the claimant had been in a de facto relationship with the deceased for three years or more, the general rule is that they are entitled to an equal share of all relationship property – with special carveouts for the family home (the main house the claimant and the deceased lived in together) and the family chattels (anything from household furniture to pets and vehicles). On the death of the spouse or partner, the claimant may decide to take up their entitlements based on a will left by the deceased or make a separate claim under the Property (Relationship) Act. There is a time limit on making this election, so it is important you have a chat with a lawyer as soon as possible. This also cuts both ways – it is possible the executors of an estate can make a claim against the surviving partner to bring further assets into the estate under

It is almost impossible to completely write your son or daughter out of your estate.

relationship property laws. However, the focus of relationship property laws is on protecting the surviving spouse, so executors have to ask the court’s permission before they can bring a claim.

Family member claims: the Family Protection Act

This Act provides a basis for a claim if a family member feels the deceased has inadequately provided for them in their will. Notably, family members include spouses and partners and children (including adopted children but not whāngai). Parents, grandchildren and stepchildren can also make a claim – but only if the deceased was looking after them immediately before their death. If provision for the proper maintenance and support of the applicant family member hasn’t been made from the estate under the deceased’s will (or the rules of intestacy if they do not have a will), the court has the discretion to order provision. The phrase ‘proper maintenance and support’ has a specific legal meaning. It obviously includes financial support, but can also include recognition of belonging to a family and of having been an important part of the overall life of the deceased. Tikanga Māori can also be relevant. Fundamentally, the court will look at the circumstances of your family when exercising its discretion.

It is almost impossible to cut your children out of your estate

It is almost impossible to completely write your son or daughter out of your estate. A child’s conduct has to have been fairly extreme for a Family Protection Act claim to be completely unsuccessful – defrauding or murdering the deceased party being some of the more serious examples. That said, to the extent a court is willing to disturb the terms of a will, in most cases, it will only be minimal. To find out more, you can read the full story at www.informedinvestor.co.nz