Court sets aside surviving spouse's notice of choice of how relationship property is divided…

The High Court has recently set aside the notice of choice that a woman made under law.

The woman and her late husband had been in a de facto relationship for over a decade and had five children. The deceased had three children from a previous relationship.

Shortly after the deceased passed away the woman filed a notice of choice of option (an election of how she wanted her husband’s property to be divided upon his death).

She elected for Option A, which meant she would have to make an application against his Estate under New Zealand law for the division of relationship property.

A choice of Option B would have meant she would have taken what was provided for under his Will.

This choice must be made within six months of probate being granted of the deceased’s Will, and is usually irrevocable.

The Court understood that this choice was made in error, as nearly three years later she applied to be appointed as the estate’s Administrator. The Court indicated to her that since she had elected for Option A after her husband’s death, she was not able to apply to be appointed Administrator, as this would result in a conflict of interest, as she would be on both sides of the application.

The Court decided to set aside her notice of choice electing for Option A, given that:

• the choice of option was not made freely by the woman;
• she was not presented with paperwork for the estate;
• it was made soon after her husband’s unexpected death;
• without having received independent legal advice; and
• without fully understanding the implications of her choice.

The Court further provided a three-month extension of time for her to make a new choice under the same legislation.

This case provides a textbook example of why seeking independent legal advice which has your best interests at heart is important. It always pays to seek a second opinion from an experienced lawyer, and assess all options at hand before committing to a way forward.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Shaun Cousins and Raiyan Azmi

Please note that Rainey Collins is not contracted to provide Legal Aid, other than in the Treaty of Waitangi area.  We therefore are unable to take on any Civil or Family Legal Aid work. If you require Legal Aid in those areas, you can search the list of Legal Aid lawyers on the Ministry of Justice website.