We specialise in complex wills and claims against estates. If you have been left out of a will, please get in touch with our team here.
I’ve been left out of my father’s Will – Can I make a claim?
As a general rule, most claims need to be lodged within 12 months of the date of grant of probate (which is when the High Court puts a stamp on the Will confirming it was the deceased’s last Will).
It is difficult to bring a claim outside this time if the estate administration has already been completed (meaning if the bank accounts have been closed, any property sold and the money paid out to the other family members).
Inside 12 months? Keep reading.
Understanding the Family Protection Act in New Zealand
Families are complicated. In nearly 30 years in the law, I have seen every sort of disagreement imaginable. A mother and daughter who had a falling out after the wrong thing was said at Christmas dinner. A son who attacked his father with a spade after decades of putting up with his alcoholic behaviour. A dad who left his entire estate to his second wife and cut out the children from the first marriage.
I have come to the conclusion that there is no such thing as a “normal” family. In nearly every family there is one member who is no longer on talking terms with the others.
Inevitably, these kinds of situations lead to a parent leaving a child out of their Will — or leaving them less than the others.
However, this is not necessarily the end of the matter. The Will can be contested. This happens more often than you may realise. Several times a year I am asked to give advice to a new client who has been cut out of a Will, asking whether they can make a claim against their parent’s estate.
So, if Dad leaves you out of his Will, you may be able to ask the court to make it right.
Family Protection Act
Claims against Wills are brought under the Family Protection Act. The legislation recognises the significance of family relationships and aims to prevent situations where family members are either unfairly left out of or do not receive a fair share under a Will.
This Act acknowledges that parents have a moral duty to provide for their children even after death, ensuring that assets are distributed fairly.
Who Can Make a Claim?
Family members are eligible to make a claim if they believe they have not been adequately provided for. Typically, claims are made by children, including children who were adopted, and in some cases, stepchildren.
Factors Considered by the Courts
The courts take various factors into account to determine whether to amend a Will, including:
Financial Needs: The court will take your financial circumstances into account. However, having a house and a good job does not necessarily prevent a successful claim. The law recognises that lots of people have a mortgage and bills to pay, and some further assistance from Mum’s estate would help ease the burden.
The importance of Family: Your financial situation is not the only test. The court also accepts it is important to recognise the relationship between a parent and a child, and that if you are left out of the Will, or receive less than a sibling, it can lead to hurt feelings. The court frequently makes an award to redress this sense of “hurt feelings”.
Relationship with the Deceased: The court will also take into account the relationship between you and your parent. The fact that you are estranged does not necessarily prevent a claim - the court will consider the reasons behind your lack of contact. If for example your father was sexually or physically abusive, then the court will likely agree it was perfectly reasonable to cut all ties with him.
Contributions: The court will look at any ways you may have helped out in the past, even if you haven’t done anything for a few years because you were no longer on talking terms.
Other Beneficiaries: The court will consider your siblings situation and try to balance everybody’s needs.
Time Limits for Bringing a Claim
When someone dies, their Will is lodged with the High Court for checking. The court then places its seal on it and declares it to be the last Will of the deceased. This is called the grant of Probate. That’s when the clock starts ticking.
Typically, claims have to be lodged within 12 months after the date of grant of Probate.
However, it’s best to take steps as quickly as possible so the person handling the estate does not pay out the money and transfer the property before your claim is dealt with. You can still make a claim, but it is more difficult to retrieve assets given to other beneficiaries.
How the Claims are Dealt With
The first step is that your lawyer will write to the lawyer handling the estate to notify them of the claim, and the reasons for it. Most cases are then sorted out by way of informal negotiations. Or everyone comes together around the table for a mediation, and a deal is hammered out.
Where things get sticky, a claim can be lodged with the Family Court. The evidence in the court is given by way of written affidavit. The hearing is held in a non-threatening manner, with the lawyers making submissions to the Judge as to what they think the outcome should be. Sometimes you will not even need to attend.
Typically, legal costs are usually deducted from the estate, meaning that you will be reimbursed the fees you incur in bringing the claim.
Conclusion
The law recognises that a parent has a moral duty to provide for their children. If you have been cut out of your parent’s Will, then you should get legal advice. There is a fair chance you may be entitled to something.
Gerard Molloy, of our office, has considerable experience in dealing with applications under the Wills Act. If you have been left out of a Will, then he would be happy to review the circumstances and give you an opinion as to the prospects of an application succeeding.
