I’ve been cut out of their Will… what now?

Family situations are often complex. There may be blended families, fall-outs between family members, or parents who think their children should stand on their own two feet and leave their whole estate to charity.  So what happens if a parent has died and left their child out of their Will, or has left a child only a very small gift?

The law provides that a Will-maker is entitled to leave their Estate to whoever they want – provided that they also fulfil their “moral obligations”, particularly to their spouse and children. Step-children and grandchildren may also be entitled to claim, depending on the circumstances.

The law is well-established that a parent must provide an adequate gift for the proper maintenance and support of their children on their death.  What is adequate depends on a large range of factors, but maintenance and support is not purely financial and includes recognition of a child’s place in the family.  Essentially, except in extreme cases, a Will which wholly excludes a child can be easily challenged in Court.  The amount a claimant can get from any such challenge is the more difficult question to answer.

So, how much could you get from your parent’s estate?  Over the years, case law has  settled on a starting point of around 10% of the Estate per claimant, particularly in smaller Estate cases.  However the factors which affect the amount a Court will award can include:

• The size of the Estate;
• The number of claims on the Estate;
• The financial positions and needs of the various claimants; and
• The relationship between the deceased and the claimant(s).

More recent decisions of the Courts provide greater support for “testamentary freedom” – that is, to allow people to leave their estates to whoever they wish. In large multi-million dollar estates, the approach is focussed on what sum is adequate to fulfil the moral obligation, rather than relying on a percentage-based method.

At present, adult children of any age can claim from their parents’ estates.  The Law Commission has proposed changes to New Zealand’s succession laws which might see that change in future.

In any case, parties are ordinarily keen to avoid a lengthy Court process and we are often able to resolve Estate claims by holding meetings or mediations between family members without the need for Court.

If you have been excluded from a Will, or feel inadequately provided for, and want to explore your options, contact Sarah Rawcliffe to discuss.

This article is current as at the date of publication and is only intended to provide general comments about the law. Harkness Henry accepts no responsibility for reliance by any person or organisation on the content of the article. Please contact the author of the article if you require specific advice about how the law applies to you.