Q: My father passed away last year after a sudden illness. He owned a small unit in east Auckland and a bach in the Coromandel.
I expected his solicitor to notify me of the terms of his Will. After months of silence, I contacted my younger sister and she admitted that she had been made the sole executrix and beneficiary of our father’s estate. I was surprised and the conversation ended abruptly after that.
My relationship with my father has always been relatively strained. He was always a lot closer to my sister. However, I still invited him to family events and visited him occasionally.
My husband and I are financially secure although a little extra financial assistance would be nice. We have three teenage children who all participate in expensive extra-curricular activities.
I recollect my father mentioning a trust many years ago. It is possible some of his assets are owned by a trust.
A: You indicate some time has passed since your father died. My immediate concern is that the deadline for filing proceedings may be approaching. You have 12 months from the grant of probate to file a claim challenging the will. The court has the discretion to extend this time, but only if your father’s estate has not already been distributed.
Only assets held by your father personally form part of his estate. Assets owned by a trust are treated differently. Trust assets will not necessarily be distributed now that your father has passed away – the trust “lives on”.
In New Zealand it is not uncommon for nearly all major assets to be held by a trust and for a person’s estate to comprise only minor assets such as cars, transactional bank accounts and household chattels.
Your father may have prepared a memorandum of wishes prior to his death outlining what he wants to happen to the trust assets. This document is not binding on trustees but usually trustees will pay close regard to the terms.
As a first step I would recommend you engage a solicitor and have them contact your father’s solicitor to request:
(a) a copy of the will; and
(b) a copy of the grant of probate (if this has been issued); and
(c) confirmation as to whether you are a beneficiary of any trust established by your father, and if so, the provision of all “basic trust information”, including a copy of the most recent accounts; and
(d) confirmation as to whether there is a memorandum of wishes, and if so, a copy of this document.
If probate has been granted, a copy of the probate and will can be obtained cheaply from the Wellington High Court. Your solicitor can also run a title search to check which properties are registered in your father’s name either personally or as a trustee of a trust.
If your father has made little or no provision for you from his estate, then then you could consider filing court proceedings to make a claim on the estate. Under the terms of the relevant legislation, a deceased person is required to make “adequate provision” for the “maintenance and support” of certain close relatives, including children (whether dependent or not).
The fact that your relationship with your father was strained would not be a bar to this. It is usually only cases where there have been significant periods of estrangement brought about by the child of the deceased or other criminal or abusive behaviour by a claimant that the court will disallow a claim.
Whether or not the claim is successful, and the amount of financial relief provided would be at the discretion of the court. Relevant factors would include:
1. What provision has been made for you and any other potential claimants;
2. The size of the estate;
3. Your father’s wishes;
4. The relationship between you and your father and your conduct; and
5. Your age, health, and financial circumstances.
It is worth engaging a solicitor experienced in this area to provide you with advice on your prospects of success first. As noted above, if most assets are held by a trust rather than your father personally then there will be different considerations.
A word of warning here.
Even if you are entirely successful in your claim, courts will usually only award the minimum to meet your father’s duty to you. It’s not uncommon to see awards of only 10-15 per cent for adult independent children, so you should approach filing a claim with caution.
Weigh up the costs (and potential adverse costs awards made against you if you lose) to see whether it is worthwhile to proceed. You should also consider the relationship with your sister – not legal advice, but these sorts of issues frequently tear families apart irreparably.
Jeremy Sutton is a barrister and family lawyer at Bastion Chambers.