Is New Zealand’s Succession Law ready for a shake up?

February 2022

Succession law addresses the inheritance of a deceased’s property and has not been updated in New Zealand for many years.

On 17 November 2021 the Law Commission completed its review of succession law. The Report recommends the repeal of several statutes and the enactment of the Inheritance (Claims Against Estates) Act.

As the law currently stands, close family members of the deceased can contest a will by arguing that the deceased willmaker failed to fulfil their “moral obligation” to provide for family members in the will.

A similar claim may also be made when there is no will and the estate is distributed under the intestacy rules in the Administration Act 1969. Many consider these rules to be outdated, difficult to follow, and not in alignment with the increasing diversity of New Zealand families.

The Law Commission Report presented two key options for the Government’s consideration:

1. Firstly, that the deceased’s children and grandchildren of all ages should be eligible to claim family provision if the deceased has unjustly failed to provide for the child/grandchild in financial need; or to recognise the child or grandchild.
2. The second option provides that only the deceased’s children under 25 years of age or those who are disabled would be eligible to claim.

The law generally only empowers the court to make awards from the property of the estate. Of interest to many readers may be that the Law Commission has recommended the court should have the power to recover property to satisfy awards against an estate where:

1. the property has been disposed of to defeat an entitlement or claim against an estate; or
2. the property is a deceased’s joint tenancy interest that has accrued to the surviving joint tenant(s) when the deceased has died with the effect of defeating an entitlement or claim against an estate.

The power to recover property would assist excluded family members where the deceased has settled property onto trust to benefit certain individuals of their choosing, and to exclude others that might otherwise have a claim under the existing Family Protection Act.

The Government is now considering the Report. If the Law Commission’s recommendations are accepted, new legislation will be drafted, and this will embark on its usual process through Parliament.

Our expertise can assist you. Please get in contact to discuss the best way to structure your estate.

Kate Warren
kate.warren@tp.co.nz
027 384 3054

Alana Crampton
alana.crampton@tp.co.nz
021 965 801

IMPORTANT: The information in this article is of a general nature only and does not constitute legal advice. Tavendale and Partners do not accept any liability for any reliance placed on the information contained in this article and shall not be liable to you or anyone else for doing something, or omitting to do something, on the information provided above.