Many people do not want to think about their death and the impact of their death on their loved ones even though it is about the only certainty in life, although there is a lingering question of “when?” This week Tina Hwang examines what will happen when you die? To read this article as a tablet and print friendly PDF click here. To read more about Tina Hwang click here. To read more articles by Tina click here.
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With more and more “blended families”, de facto relationships, complex trust(s)/asset structures, and misunderstandings about estates and wills, will administration is becoming harder these days. Certainly more so than the days where you simply had one marriage, one house, a few children with an accepted consensus that you would leave everything to your wife/husband and then your children if something was to happen to your wife/husband.
You may be shocked to learn that your will is not black letter law and may not be administered exactly how you wish.
A. Mitigating Claims
If you are not careful, your estate and/or your trust can be struck with multiple claims it will have to resolve on your behalf.
1. Claims under the Property (Relationships) Act 1976
Nowadays the estate needs to review how many partners the deceased has had and whether they have all had valid separation or contracting out agreements (signed and certified by lawyers- a mere settlement will not protect the estate) as multiple partners can now claim under the Property (Relationships) Act 1976 if they have been left out of the will, but feel they should get something. Alternatively, they may have a provision under the will, but can still make a claim under the Property (Relationships) Act 1976 for a bigger amount if they believe they are entitled to more. However they must make a choice to claim under the Property (Relationships) Act 1976 within 6 months after the grant of administration. It will therefore be wise to enter into valid contracting out agreements with all of your partners (current and old) to ensure your estate is not struck with any claims.
2. Claims under the Family Protection Act 1955
Furthermore, your spouse or civil union partner can alternatively use the Family Protection Act 1955 to make a claim within 12 months after the grant of administration. Your children and relatives (specified class as defined under the Act) can also make claims under the Family Protection Act 1955 if they have been left out or think they should be given a greater distribution. Such expectations should therefore be discussed and talked about prior to your death. Often due to a fall out in a relationship, people wish to exclude a certain child or decrease the distribution to a certain child. However you should be weary of total exclusion as your child (by virtue of being your child) will likely succeed in a claim to something (whatever that may be). Also a decreased distribution may spark a claim which your estate will need to defend, so it will be wise to manage all of these before your death.
3. Testamentary promises
Lastly, if the deceased promised to make an allowance in their will for works or services done by someone and did not do so, this person can make a claim under the Law Reform (Testamentary Promises) Act 1949 (within 12 months). Therefore one should not make such promises unless they actually amend the will as this will cause another disputable ground.
Please also note that a trust is not bullet proof. If your partner / spouse made any contributions towards your trust property, they will likely have a claim to the trust property and may again affect your intended beneficiaries.
You can never actually prevent anyone from making a claim, but as demonstrated above, it will be easier to mitigate these as much as possible by taking wise steps before your death. Remember the more number of claims your estate/trust receives the longer it will take for your loved ones to receive distributions under your will and in some cases your loved ones may really need the funds urgently.
Many people often leave a friend, lawyer or accountant as their executor/trustee under the will, but more thought should be placed into this decision. Who can you really trust? Who can resolve all the issues that may arise? Who can work together? It will be problematic if you place a friend and a lawyer who have never met before and start disagreeing on the way forward.
If your children are young, think carefully about who you will appoint as your guardian. I have met clients who have just put down their sibling or neighbour without telling their proposed guardian what they were doing under their will. It is better that they fully know and agree to this before you appoint them under your will.
This is now a contentious ground for many people as the deceased may have appointed a friend/lawyer/accountant to be their executor/trustee and the executor/trustee may wish for your funeral to be a certain way while your spouse or relatives wish for it to go a certain way. This is particularly contentious in religious or cultural settings where there may be family disagreement. It is accepted law that there are no property rights to a body of the deceased, but the custody and possession is vested in the executor (Murdoch v Rhind and Murdoch  NZLR 425 (SC) at paragraph 20 (also citing Williams v Williams (1882) 20 CH.D 659 and Garrow’s Law of Personal Property 2nd Ed 68). This was affirmed in Takamore V Clarke  NZSC 116 and Tapora v Tapora CA 206/96, 28 August 1996 where the Court of Appeal held that “both the right and the duty [relating to the disposal of a dead body] lies on the executors, to the exclusion of other persons.” If you did not appoint your spouse or sibling as your executor/trustee but told your spouse or sibling exactly how you wished your funeral to be, this may not be carried out by your actual executor/trustee. Furthermore you may be shocked to learn that a direction that your body be buried or cremated at xyz is not binding on your executor/trustees. They are only obliged to do what is practical and reasonable given the circumstances. So carefully consider who you appoint as your executor/trustee and whether you are confident that they will carry on your wishes. Or a Buddhist may end up having a Christian funeral or a wish for a body to be buried at xyz may result in your body being cremated and held by someone you do not want and there will be absolutely nothing you can do then.
About The Author: Tina is interested in helping the youth community and is active in her local church. Born in South Korea, and raised in New Zealand, Tina is fully bilingual. Tina loves sports, including hockey, badminton, soccer, and netball, and also has a passion for the beach and innovative art.She is deeply interested in resolving problems for families in distress, don’t hesitate to contact Tina if you need more assistance. Please click here for her profile and feel free to contact her on 09 970 8812 / firstname.lastname@example.org. Contact Us