Where there’s a will there’s a way – for now. The Law Commission is calling for submissions on a proposal to stop adult children from contesting being left out of their parents’ will.
It’s an age-old story – siblings squabbling over who gets what once the parents shuffle off this mortal coil.
Adult children of the deceased currently have the right to contest their parents’ will if they feel slighted.
The Law Commission says this is more trouble than it’s worth and is calling for submissions from the public on what they think the law should be, after suggesting a raft of its own changes recently.
Their review asks a few important questions – should a person be able to get rid of their property in exactly the way they choose? Should family members have rights to protect themselves against disinheritance?
The Law Commission sees many of the current rules are old, complicated and inaccessible, saying it is “concerned that they have not kept pace with the social changes in Aotearoa New Zealand and the increasing diversity of families”.
The biggest issue on the table is family provision.
At present, if a parent leaves an adult child out of the will, they have the opportunity to dispute this in court.
However, the Law Commission has pointed out the wealth of subjective factors that can affect this, making it difficult for a judge to decide what an adult child should get from an estate.
“What if the deceased had helped the child financially during their lifetime?” the Commission asked in a recent press release. “What if the deceased and the child had fallen out? What if the deceased wished to support charitable causes because their children are financially secure?”
Law Commission deputy president Helen McQueen says the uncertainty surrounding contesting a will is the Commission’s most pressing concern.
However, University of Auckland senior law lecturer Nikki Chamberlain says there are problems making a blanket rule, where nobody has the opportunity to contest the will.
“The problem is there are always exceptions. What if a person who has means wants to leave their money to a charity despite having a child who may be disabled or unemployed or otherwise reliant on the state?” she said.
“At the moment, the courts can provide for such a person from the parents’ will – I think that’s important.”
She says a bigger issue around succession law at the moment is the need for it to be more user-friendly.
“Reform has happened gradually over different times, so we’ve ended up with a piecemeal family of statutes. It’s hard to get a full picture.”
Chamberlain says everything pertaining to wills and inheritance should be consolidated into one act.
“I’d be a fan of including everything about succession law in one place,” she said. “That would make things easier to access.”
The Commission will take the public response into account when making their recommendations, along with other factors such as a recent survey by the University of Otago on attitudes to succession law.
McQueen says the law needs to reduce the “social cost” of families being pitted against one another.
“The process of taking the case to court or reaching a settlement of the claim is often distressing for those involved,” she said. “Relationships break down, sometimes irreparably.”
Bad blood among family members disputing the will can also affect how efficiently an estate can be divided. “Scarce judicial resources are employed to resolve these disputes,” McQueen said.
She says certainty in the law will lead to less litigation, which would reduce financial costs for all and relieve strain on the courts. “Most importantly, it will promote better outcomes for family members.”
However, Chamberlain suggests conflict between family members shouldn’t cause the courts to replace the right to contest a will.
“Instead, we could encourage alternative forms of dispute resolution. You can tweak the law but still keep people’s rights.”
The Law Commission encourages members of the public to visit their consultation website and have their say before the 10th of June.
