Should Adult Children be able to challenge their parent’s wills?
You will have seen the headlines in the media about families at war over their parent’s wills. The arguments of the Green family (https://www.stuff.co.nz/business/industries/82480390/divorce-possible-in-family-of-business-magnate-hugh-green) , the saga of the Supreme Court Judge (Robert Chambers) and the issues with their blended families (https://www.stuff.co.nz/business/money/92972957/where-theres-a-will-theres-a-way-to-challenge-it), are just two examples of how the Courts have been used to challenge a will made in good faith by parents.
The current succession laws enable children to challenge their parents wills through the courts if they feel that they have been treated badly. While these laws were originally established to make sure that young children were properly provided for, adult children have been able to dispute a will if they feel that they have been treated unfairly. At law school, we learn that this is about ‘the recognition of the family bond’ (and there are a number of cases where this has been canvassed.
The Law Commission review of succession laws
A key role of the Law Commission is proposing changes to our laws. They undertake a review, call for submissions and make recommendations to the Government. The Government can then choose how much or how little of those recommendations to implement, this is the process that saw the major changes to our Trust laws, codifying the case law that had been built up over the year, and making it clearer what Trustees responsibilities are.
The Law Commission is currently undertaking a review of the succession laws in New Zealand, and the terms of reference included consideration of:
- who should be entitled to claim property despite what the deceased said in their will, with a particular focus on a surviving spouse or partner and other members of the deceased’s family.
- who should be entitled to share in property when a person dies without a will, with a particular focus on a surviving spouse or partner and other members of the deceased’s family.
- what the policy justifications should be for such entitlements.
- what property should be available to meet entitlements.
- how succession law should address areas of particular concern to Māori.
- ancillary and procedural matters.
The review will impact a number of Acts, including the Administration Act, Property (Relationships) Act and the Family Protection Act. At present, the Administration Act stipulates what happens to the money if someone dies intestate (without a will), and divides the money up between parents, childrens and spouses according to a specified formula.
The issue of whether adult children should be able to overturn a parents drafted will has had specific focus from commentators with an excellent article in Newsroom (available at https://www.newsroom.co.nz/adults-snubbed-by-parents-wills-may-lose-right-to-contest ).
Particular questions that are being asked as part of the full review are:
Should a person be able to get rid of their property in exactly the way they choose? Should family members have rights to protect themselves against disinheritance?
As the Newsroom article points out – if an adult child challenges a will there are ‘a wealth of subjective factors that can affect any decision’ which makes it difficult for a judge to make a decision about what an adult child should get from an estate. For example “What if the deceased had helped the child financially during their lifetime?” the Commission asked in a recent press release. “What if the deceased and the child had fallen out? What if the deceased wished to support charitable causes because their children are financially secure?”
On the other hand, as pointed out by a senior law lecturer – what if someone has left all their assets to charity despite having a child who may be disabled, or otherwise reliant on the state?
If you are interested in more information about the review, the Law Commissions Issue Paper is on the link below