The division of a parent’s estate can be a stressful and confusing process if things aren’t clear in a Will.

It is common for a person to leave their assets in full to their new partner, with the intention or expectation that the partner will divide the assets fairly upon their own death through their own Will. This can lead to situations where a parent passes away, but doesn’t leave their children anything in their Will.

One way in which a claim can be made against a parent’s estate is through the Family Protection Act. This Act contains provisions that enable certain members of a family to make a claim if they haven’t been adequately provided for.

Under this Act a child can make a claim against their deceased parent’s estate. For such a claim to succeed the child must show that the parent had a moral duty to provide for them through their Will, and that the failure to do so is a breach of this moral duty.

In cases where a child and a partner (being a step-parent to the child) have competing claims against an estate, the New Zealand Courts have made it clear that the partner is given priority over the child.

The Court does however look at the financial needs of the competing parties when making a decision.

Often if the child is in financial hardship and the partner is financially secure or owns a lot of assets from before the relationship began, the Court will prioritise the child.

It is also the case in the opposite situation. If a partner is in financial hardship but the child is not, the partner is likely to be prioritised by the Court.

The situation may be more complicated when the parent has remarried and has left all of the estate to their new partner. It always pays to seek legal advice in these situations.

A situation such as this arose recently and was dealt with in the High Court.

In this situation the father of two children died and left his complete estate to his partner, who was not the children’s mother.

One of the children brought a claim to Court seeking a share of his father’s estate, claiming that it was his entitlement under the relationship property agreement that his father and the new partner had entered into.

Prior to making the claim the son had sought payment of his share by his father’s partner, stating that he did not want to wait for years to receive his entitlement.

The partner declined to pay the son as she did not view him as “in need” of the money. She claimed that she was entitled to enjoy the relationship property for the remainder of her life, and that the son would receive his entitlement upon her death.

Under the Family Protection Act, the child of a deceased individual can make a claim if they have not been provided with proper support under the Will. In terms of a claim such as this, support can include sustaining, and providing comfort to, the individual.

The son claimed that the failure to provide for him at all in the Will was a breach of his father’s moral obligation, and sought a $2.5 million share in his father’s large estate.

The Court decided that the partner, as an Executor of the estate, had a duty to provide for the son.

The Court did not order an amount to be paid to the son, but did state that if the partner did not properly exercise her discretion in considering payment to the son in light of her duty to him, the Court may find that the partner was holding money on behalf of the son.

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Gianna Menzies & Matthew Binnie