The purpose of a will on the face of it is straightforward. It’s to ensure that on your death your assets will be distributed according to your wishes. After all, you would think that you could do as you wanted. Well, it’s not so straightforward, and, as a general rule, you need to ensure that you have made adequate provision for your family.
It is common for people to have had several relationships in their lifetime and possibly children to go with that. Then there are the step-children and possibly your own parents to consider. The result of all this is that a ‘moral duty’ has been created by the Family Protection Act 1955 to ensure that will makers make adequate provision for their family members. Of course, the next issue is who gets considered first and who gets considered last.
Helpfully, the Family Protection Act spells this out. The order is:
1. Spouse or civil union partner
2. De facto, if in a relationship at the date of death
5. Stepchildren, if being maintained by the will maker
6. Parents, if being maintained by the will maker
The more complicated the family situation is then the more complicated the hierarchical order becomes. This is where the will maker will need guidance in the preparation of their will.
Of course, the issues come home to roost after a will maker’s death and a family member or two believe they haven’t been properly provided for, which can lead to a claim under the Act against the estate. Such a claim is not uncommon. It is important to note that “adequate provision” for “proper maintenance and support” is not the same as a will providing for a fair or equal share to various family members.
The majority of claimants are competing children, and the primary task of the court is to decide what provision is necessary to discharge the will maker’s duty to their family. The courts will adjust the estate’s distribution if necessary to ensure this duty has been met.
The court will carefully consider all of the facts and the particular circumstances of each family in their decision. So always take legal advice before making or amending your will to ensure you have discharged your duty to your family.
John Waugh, Devonport Law, Matakana