NEW ZEALAND Law and Practice Contributed by: Greg Ambler and Elizabeth Heaney, Tompkins Wake
are no children, but there are surviving parent(s), the estate is held on trust for the parent(s). If there is no partner, no issue and no surviving parents, the estate passes to the surviving siblings (full or half blood) on statutory trusts. • If no immediate family member takes a vested interest, the estate is distributed to grandparents and then to aunts and uncles. Half goes to the maternal side (grandparents, then maternal uncles and aunts if no grandparents survive), and the other half goes to the paternal side in the same order. If one side has no surviving relatives, the estate passes entirely to the other. • If no eligible relative receives a vested entitlement under the intestacy rules, the estate passes to the Crown as bona vacantia, which may still choose to make provision for dependants or others the deceased might reasonably have been expected to support. 3.2 Forced Heirship There are no formal forced-heirship rules in New Zea- land as there are in certain civil jurisdictions, and it is commonly noted that New Zealanders have what is referred to as “testamentary freedom”, that is, an ability to make provision to whomsoever they please in their testamentary documents. This is not an unbridled freedom, and will-makers are still subject to certain statutory limitations, and their dispositions are subject to the possibility of certain claims following the will-maker’s death. Such claims are usually brought under the Family Protection Act 1955, the Law Reform (Testamentary Promises) Act 1949 and the Property (Relationships) Act 1976. Family Protection Act 1955 The Family Protection Act 1955 allows certain close family members, including spouses, partners, chil- dren, grandchildren, (and in limited cases, stepchil- dren and parents), to claim against an estate where the deceased has failed to make proper provision for their maintenance and support. The court may order provision from the estate if justified, subject to factors such as the deceased’s reasons and the claimant’s (disentitling) conduct, with special limitations apply- ing to de facto relationships of less than three years. Claims must generally be made within 12 months of
the grant of administration (or two years for minors or those lacking capacity), though extensions may be allowed before final distribution. Law Reform (Testamentary Promises) Act 1949 The Law Reform (Testamentary Promises) Act 1949 allows a person to claim against an estate where such person provided services to the deceased during their lifetime and were promised (either expressly or implic- itly) a testamentary reward that was not fulfilled. The court may award reasonable compensation based on the value of the services, the circumstances of the promise, the size of the estate, and competing claims. Such claims must be filed within 12 months of the grant of administration, although limited extensions are possible if the estate has not yet been distributed. Property (Relationships) Act 1976 The Property (Relationships) Act 1976 classifies all property of married, civil union or qualifying de facto partners as either separate property or relationship property, with relationship property (usually property acquired during the relationship, including the fam- ily home) shared equally when the relationship ends, whether by separation or death. After a partner’s death, the survivor may choose Option A (a division of relationship property under the Act) or Option B (taking what the deceased partner’s will or intestacy provides), and must normally elect within six months of the grant of administration. A presumption applies that all property owned by the deceased at death is relationship property unless proven otherwise. De fac- to partners of less than three years may claim only in limited circumstances, for example if there is a child of their relationship, they have made a substantial contri- bution to the estate or not recognising the claim would result in serious injustice. In respect of any of the above claims, these may be waived whilst an individual is alive, through a “con- tracting out agreement” under the Property (Relation- ships) Act 1976, or resolved by a negotiated position often recorded in a deed of settlement or deed of fam- ily arrangement.
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