New family law likely to unleash war of wills

REBECCA WALSH looks at what a new law will do to families and wills.

Disputes over wills are likely to be contested from next year under new law.

In February the Property (Relationships) Act will replace the Matrimonial Property Act.

The new act, which covers married, de facto and same-sex partnerships of three years or more, will effectively split relationship property down the middle, unless alternative legal arrangements have been agreed to by both parties.

Lindsay Pope, general manager of the Public Trust's special business unit, says that when a person dies their partner can choose to take what is left to them in the will or, if they are unhappy with that, seek what they are entitled to under the law.

Technically, relationship property deals with assets built up together during a relationship.

Separate property is what a person had before the relationship, inherited or never shared.

Over time it can be a fine line between the two.

Difficulties could also arise if a person has more than one relationship, Mr Pope says.

To contest a will people must file a claim, stating why and under what act.

The other two main pieces of legislation used to make a claim are the Family Protection Act and the Law Reform (Testamentary Promises) Act.

Under the Family Protection Act there is a moral obligation to provide for a partner and children.

Although it is not common for people to turn their backs on their family, it does happen.

And when it comes to challenging the will, being family does not automatically mean you will receive a share of the estate.

Graham Grant, a special business manager at the Public Trust, says the standard used by the courts in determining a claim is, "What provision would a wise and just person make for the claimant?"

The court also takes into account the social attitudes of the day, and has in the past two years adopted a stronger position on not changing the provisions of a will, he says.

Mr Grant says there would have to be "really good reasons" why people would leave their money to charity rather than their children.

One reason could be if the children are wealthy.

Or the person could cite "disentitling conduct" under the Family Protection Act if their child had, for example, ignored them throughout their lifetime.

Mr Grant believes more complicated family situations have led to an increase in the number of people going to court to do battle over a will.

Despite that, Mr Pope says it happens in a minority of cases and options such as trusts can help avoid that.

Lawyer Bob Eades says families who have not seen eye-to-eye can reduce the chances of a claim.

"There are an awful lot of contrary and disappointed people, and there's nothing worse than a family that is being rent asunder because they think either they haven't got enough or that someone else has got too much.

"If you are going to leave someone out, let's get a record of the reasons you are doing it, because when you die that can be produced," he says.

"Very often I would say, sit down and write it out in your own handwriting, then that can be handed on to the judge if there is an argument after you die."

Many people find that providing for their family and the causes or charities they believe in can prove difficult.

"There's a balancing act very often," Mr Eades says.

"You don't want the people to go crazy and leave nothing to their children but, at the same time, if they want to leave $5000 or $10,000 to a friend or someone who has served them particularly well, or the girl who delivers the papers, provided there's the money to do it, I would say, why not?"

Another avenue used to contest a will is if a person has been promised something and ends up with nothing.

Mr Pope gives the example of an elderly person with no close relatives in New Zealand who promised the helper who did the lawns and the shopping something in the will. But he or she forgot to change it.

Rather than go through a costly court battle, many cases are settled through mediation.