Succession Law Changes
Te Aka Matua o te Ture | Law Commission is proposing changes to succession law, which addresses who inherits a person’s property when they die. In an issued paper and a consultation website released early in 2021, the Commission has identified some issues with the law, sought feedback by 10 June 2021, and has presented a report to the government for reform.
Current succession laws
Succession laws in Aotearoa have not been reformed in many years, being drafted in the mid-20th Century. At present, New Zealand succession law allows people to gift property through their will as they wish. In some circumstances however, close family members may challenge the will and claim further provision from the estate.
Currently, if a person dies without a will, the law directs which family members should receive the property in the estate and in what shares.
Lead commissioner on the review, Helen McQueen, states, “Succession law affects every New Zealander … affecting the relationships we enter and what we think family means. Societal attitudes and values have changed, and we think some of these laws are now out of date. It should balance the mana of the deceased, property rights and obligations to family, and whānau, promoting positive outcomes for families, whanau, and wider society.”
So, what is Te Aka Matua o te Ture | Law Commission proposing?
The question that were raised within the review are:
• How important is the freedom to choose what happens to our property after we die? Do we have a duty to provide for our family and whānau?
• Should succession law reflect the obligations to partners and family that exist during our lifetimes?
• How can the law help families avoid and resolve disputes about a loved one’s estate?
The Commission notes the potentially different perspectives among Māori.
“Succession is an important kaupapa for Māori and engaging Māori voices in our consultation is a priority for the Commission. We ask about the relationship between tikanga and state law in any reform.”
The review invited feedback on three parts:
Part One
Currently, succession law is spread across four pieces of legislation, the oldest being 70 years old. The review examines the basis for good succession law in contemporary Aotearoa New Zealand, including a proposal for one single, comprehensive new Act that governs claims against estates, subject to feedback on a framework for developing good succession law from an ao Māori perspective.
Part Two
Addressing the entitlements to and claims against estates. The Commission’s proposal for reform included the following:
Part Two is also the focus of the Commission’s consultation website — .
Part Three
Considering making and resolving claims against an estate. The report includes proposals about the property that should be available to meet any successful claim, contracting out and settlement agreements, and the jurisdiction of the courts. It also considers the process for resolving disputes in and out of court, and from an ao Māori perspective.
Recommendations for reform:
The following are some of the changes that have been put forward for reform.
• Under the current law, no matter your children’s age, parents are considered to have a “moral-duty” to provide for them. The Courts have quantified this duty to be in the vicinity of 10-15% depending on individual circumstances. Following public review, the new recommendations are to do away with this duty for children over the age of 25. This means that if you are over 25 and feel your parents have not sufficiently provided for you within their Will, you cannot contest it. Exceptions to this are disabled children or children under the age of 25 are still eligible to make a claim.
• As society has changed, so has the conception of the “family unit”. Where stepchildren have has no standing to make a claim previously, The Law Commission recommends that stepchildren are given the right to make a claim. This extension includes whāngai (adoption) relationships.
• A surviving partner should continue to have the right to the same property from the estate that they would get if the couple had separated rather than the deceased partner dying. The surviving partner should be able to choose to divide the couple’s relationship property or to take only what is provided to them under the deceased’s will or in an intestacy. The Commission has recommended a wider view be taken of blended families. Especially in the case of re-married parents who own property as joint tenants and on the death of one parent, the property automatically passes to the survivor hence leaving the children of the deceased parent without access to their parents’ asset.
• Changes to rules apply to the distribution of intestate estates (where a person has died without a will in place) have been recommended to better reflect the way most intestate people in contemporary Aotearoa New Zealand would want their estate distributed when they die. Where there is a partner but no descendants, it was suggested that the partner should get the whole estate, with the parents no longer entitled to a share. If there is no partner, it was suggested that the descendants should continue to share the estate. Where there is a surviving partner and descendants, the report identified three options for how the estate should be shared, and asked whether this should be affected by whether the surviving partner was also the parent of the deceased’s children.
• A recommendation that any person who has contributed significant benefits to the deceased or their estate but received no compensation should be able to make a claim against the estate under the proposed new Act.
• Succession of taonga could be governed by tikanga Māori and not general succession law.
• The report considered how tikanga Māori might recognise and respond to various aspects of succession including the expression of testamentary wishes, obligations to a surviving partner and other whānau members (particularly tamariki), and obligations to someone who has contributed to a deceased or their estate. The report also considered how tikanga Māori and other shared values might be reflected in new law applicable to all New Zealanders.
• The intended law will also give the Courts greater power to investigate assets that fall outside the estate. For example, if there is clear evidence that someone intended to use a trust to hide their assets then the Court could allow a claim against the Trust.
When are the law changes due to be finalised?
The report, He arotake I te āheinga ki ngā rawa a te tangata ka mate ana | Review of succession law: rights to a person’s property on death, was presented to Parliament on 15th December 2021. Because of the complexity and nature of the review, is expected to take a number of years before changes are finalised.
Are you in the process of writing your will?
Blackwood Montagna can help. With consultations available over zoom, after hours, or in person, our friendly team are here to ensure that your will is as clear as it needs to be and carries the meaning that you intend. We ensure you have considered all of your options and leave no gaps or loopholes for your peace of mind. Please don’t hesitate to contact one of our team today for some guidance or advice.
