Cases of famous people contesting estates make the headlines, as did the rugby-league playing Ropati family in December last year, Fairfax reported. Many hundreds of others go unreported. According to the Ministry of Justice, there were 325 applications to the Family Court or High Court disputing estates in the last full recorded year.
Disputes over inheritances are becoming more common thanks to growing property values, says barrister Chris Patterson.
"This is because a significant aspect of New Zealand's wealth is held by members of the baby boomer generation who financially survived the 2008 financial crisis. Some of their estates are valued in the tens of millions," says Patterson.
"Even a small per cent of such estates represents a significant amount of money for a beneficiary of that estate. In some cases it is certainly worth making a claim for either inclusion or an increased share of a large estate."
Richard Broad, head of legal personal client services at Perpetual Guardian, started to tell me that contested estates came in three main variations, but paused for breath when he'd listed nine. They are:
• The Family Protection Act. A family member such as spouse, de facto partner, child, grandchild or stepchild can contest a will if they believe the moral obligation to look after dependants has not been met, says Broad.
• Testamentary promises. A testamentary promise is a reward for services rendered. Perhaps you gave up your job to care for a neighbour and were promised something in the will. Broad says he sees this one often where a friend of the family, for example, is told that they'll be "looked after" in the will and then is left a paltry few thousand dollars. The bar is higher for this one than many people think, says Broad. Driving an elderly neighbour to church a couple of times doesn't make you entitled to something in the will. Siblings of the deceased or nieces and nephews who can't claim under the Family Protection Act sometimes "concoct a claim" under the Testamentary Promises Act, says Broad.
• Widows and widowers. The Property (Relationships) Act is fertile ground for estate lawyers, says Broad, especially where there is a second marriage. "With second marriages they won't hold their property jointly." So on the death of one partner the other gets a life interest. A not uncommon legal move is for a spouse who has been left a life interest in the other half's will to make a claim that they need to be better provided for. "They can do that and they do," he says. The surviving spouse or de facto partner might claim that a life interest stops them, for example, spending the capital if needed. What's more, says Broad, if the wife (or husband) gets a life interest in the property, they have to continue to liaise with the children, "but quite often there is a lot of animosity there". By appealing to the court to be better provided for, the wife no longer needs to be beholden to the children. "It is difficult to be fair to everyone [in cases such as this] and people become suspicious," says Kelly.
• Lack of testamentary capacity. Wills can be challenged, says Broad, where it is believed that the will maker had a lack of "testamentary capacity". That means the deceased didn't have the capacity to make a will. An example cited by Vicki Ammundsen of Vicki Ammundsen Trust Law is that of Fitzgibbons v Fitzmaurice. A suicide note addressed to the deceased's executor removed his only sister from the will and left all his assets to the Salvation Army. The court was not satisfied he had testamentary capacity when the note was written and overturned it, says Ammundsen.
• Undue influence. This often arises when an elderly or disabled person is put under undue influence or fraud is carried out to get the will changed. Stories of this abound. Broad cites the case of a son who had taken the mother to the lawyer and convinced her to leave everything to him. Sometimes a family member will take advantage of a relative's dementia and have them sign a new will. Broad cites a case in which one of four children got the whole estate by doing this and his siblings weren't happy. "He was there telling mum to sign the will and took her into a lawyer's office. It is very hard for the elderly parents to say 'no' in that case."
• Implied trusts. Broad sees cases where there is no formal trust in place but someone argues the money was being held in a "common law constructive trust" by the deceased on behalf of others.
• Drafting errors. As Ammundsen points out, will-makers and their advisers are human and sometimes make mistakes. She cites an example in which an estate was split among eight beneficiaries, but the percentages left to each of them didn't add up to 100. Section 31 of the Wills Act allows for errors such as this to be fixed, she says. That requires an application to the High Court, so isn't cheap.
• Informal or draft wills. Your will doesn't need to be written down. If a lawyer, for example, has notes and hasn't even drawn the will up before a person dies, it could still be valid and replace previous wills, says Broad. If there is evidence that your intention was to give it all to the SPCA, that could well be what happens, assuming of course a claim isn't brought under the other laws above such as the Family Protection Act and the Relationships (Property) Act.
• Creditors. If someone is owed money, he or she can apply to the court under common law for that debt to be repaid if the executor refuses to pay. "You are not attacking the clauses in the will, but you are saying, I am entitled to some of the [estate] before it gets divided up," says Broad.
Kelly adds that contesting estates can be expensive and sometimes the money to be gained can be eaten up by legal fees. It's not unusual, therefore, for cases to be resolved in a judicial settlement conference rather than go through a full court hearing.
Patterson adds that in in hotly contested disputes, the proceedings can span years and exhaust the legal funds of the parties. A simple claim for provision under the Family Protection Act can morph into an application to the High Court for removal of the executors of the estate, he says.
"The High Court has the ability to remove executors under legislation and by operation of its inherent jurisdiction. I predict that we will see more and more applications being brought for removal as we see the corresponding increase in claims being made against estates."
