Question: I am one of eight children. My mother died about five years ago and recently my father died.
I was horrified to learn that I was left out of the will. My father had also promised me I would get his Rolex watch, but this was not part of
I have been left out of my father’s will what should I do? - The Ex-Files
By Jeremy Sutton
NZ Herald·
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Navigating claims after being left out of a will is complicated. Photo / 123rf
Opinion by Jeremy Sutton
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I would prefer not to go through the court system if possible.
I am a beneficiary, and I have no money to spend on lawyers. Do I need to see a lawyer or someone else to press for my entitlement?
Answer:
Fees
Legal fees for your dispute can be significant, particularly when there are a number of parties who have separate lawyers. In this case, there will be a lawyer for the estate, and at least one lawyer for the other beneficiaries.
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Legal aid
As you are on a benefit, and presuming your assets are very modest, you would most likely qualify for legal aid through the legal services agency.
There are some lawyers who will take their fees for such a dispute at the end of the case.
Time limits
There are time limits in bringing such a claim. If you delay in making such a claim this could prejudice you completely. You would have possible remedies first under the Family Protection Act. There are two criteria for making such an action.
- You need to show that your father failed to make “adequate provision” for you. This is broadly defined and the courts will take into account your personal circumstances. It depends what assets you own, such as a property or investments, and also what liabilities you have.
- You also need to show that your father owed you “moral duty” which will consider your relationship, how financially reliant on him you were, and so on. You will need to provide evidence of your relationship.
As well as being your statement, supporting documentation including photographs, text messages, emails, or any letters as to the nature of your relationship. It would also benefit you if anyone else in or outside the family could support how close you were to your father.
If the promise was made in writing and you have a record of that, then this would be very helpful.
However, if the promise was made early, then it would be down to credibility as to whether the court believes that you had such a valid claim.
Resolution
Most claims are settled through mediation or an alternative dispute resolution.
It would normally be desirable for you to attend mediation yourself if that was an option. You could attend by way of video link if there were consent from everyone else, but generally it’s better to be face-to-face in these situations.
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If mediation were unsuccessful, then you may have to issue a claim through the Family Court.
Time and cost
My experience is that claims take nine to 18 months to resolve. However, each case depends on its facts. The main point is that it will normally take some time to come to a resolution. A very small percentage of cases go through the Family Court system to a hearing.
In that case your matter may take up to three years to resolve or be determined. You would need to weigh up the possible benefit you may receive from filing proceedings against the time, stress and resources required to resolve it.
Additionally, you will be competing with the interests of your siblings so you should think about the impact on family dynamics before you choose to proceed.
If you end up in court and prove your claim, the court will only give you what they think is the minimum to meet your father’s obligation. It may be unequal/less than what the rest of your siblings get.
If you agree on a settlement, all interested parties would usually sign a Deed of Family Arrangement.
Summary
There is testamentary freedom in New Zealand which allows for some autonomy of how an individual disposes of their assets, but it is open to possible claims under the Family Protection Act.
There may be a moral duty to other beneficiaries who are either left out of the will or provided for modestly.
Because you have been left out of the will, I understand that you have strong feelings to seek a claim. I would advise you to seek not only a claim for your share but also to recover your legal fees.
Because of the time limits on such claims, I advise you to proceed quickly. Good luck!
