[Home] [Databases] [WorldLII] [Search] [Feedback] New Zealand Law Commission

[Database Search] [Name Search] [Previous] [Next] [Download] [Help]

3 Summary of proposals

59 THIS CHAPTER SETS OUT the Commission’s proposals in summary form, with a very brief explanation of each. We discuss the proposals and the reasons for them in the following chapters. The Draft Act and commentary also provide greater detail (para C1).

60 We realise that some of these proposals are contentious. This is especially true of our proposals about de facto partners’ and adult children’s claims. They need full debate before they can reliably be submitted to the Government as recommended legislation. We welcome comments on the policy and detail of all our proposals. But more importantly, we seek advice on whether there are better ways of changing the law which applies to these more contentious testamentary claims.

61 The proposals deal with the rights to claim of particular groups of relatives:

• widows and widowers (paras 66–67)
• de facto partners (paras 68–69)
• children (paras 70–72)
• adult children (paras 73–74)
• other relatives (paras 75–76), and
• contributors (paras 77–78).

62 On balance our proposals are more favourable to claimants than the present law in providing for widows’ and widowers’ claims. They are considerably more favourable than the present law governing claims made by de facto partners. On the other hand, they may tend to restrict claims made by will-makers’ children and other relatives.

63 We propose also to set out, in one set of statutory provisions, the rights of people whose actions have contributed to the will-maker’s estate (paras 77–78). These people may or may not be family members. Contributions may take the form of services, additions to the will-maker’s assets or actions which save the will-maker significant expense.

64 Two different types of claim are found in our proposals:

• property division and contribution claims, where claimants seek the return of benefits they have conferred on the will-maker; and
• support claims, where the will-maker had a special and immediate responsibility for claimants, who seek to be supported for their reasonable needs in life.

The distinction is important, and we will return to it frequently in the following chapters.

65 As already indicated, none of these proposals applies to Mäori when they succeed to Mäori freehold land, Mäori incorporation shares, or trust property under Te Ture Whenua Mäori/Mäori Land Act 1993 (para 12).

The proposed legislation

66 WIDOWS AND WIDOWERS – Currently, if the will-maker does not leave their widow or widower enough of the estate, the surviving partner may apply for an award under the Matrimonial Property Act 1963. Usually this award is based on the claimant’s contributions to the couple’s property. The law, unlike that which applies on divorce, makes no presumption of equal sharing. Widows or widowers may also apply for an award for maintenance and support under the Family Protection Act 1955. The size of each award is fixed by the court in its discretion (paras 87–89).

67 Instead, we propose that:

68 DE FACTO PARTNERS – Under the present law, a de facto partner has no claim against the will-maker’s estate by reason only of the de facto relationship. Where the claimant has made contributions to property owned by the will-maker, the court (applying general law) may impose a constructive trust. The partner’s rights depend on the particular circumstances of the case. There is no presumption of equal sharing, nor does the surviving partner have a support claim (para 138).

69 Instead, we propose that:

70 CHILDREN – Under the Family Protection Act 1955, the will-maker’s children have substantial claims against the estate, if they are disinherited or given only a small share of the estate. This applies as much to mature sons and daughters (eg, in their 60s) as it does to infant children. A study done for the Commission showed that claims often result in each child being awarded 1/8th to 1/5th of the estate. A child without siblings can receive more than half of the estate (paras 173–176).

71 We propose to recognise a clear right to claim in three cases:

72 There are serious questions to be asked about whether adult, independent children should have any claim at all. For children who believe that they have been arbitrarily disinherited, this may appear hard, especially since they are well protected under existing law. But that law is open to criticism. It would be possible to devise a system which deals with arbitrary will-making and children’s need without going to the full extent of the present family protection law. The Commission explores such systems later (paras 233–266). We conclude, however, that any such provisions would be complex, clarity and precision would be lost, and, if the system were applied strictly, few claims would succeed.

73 The Commission sets out the issues and arguments fully in chapter 7. It prefers at this stage, however, not to express a concluded view on which of the following options should be selected:

74 We welcome discussion and suggestions on what might be done. The Commission nevertheless proposes at least one significant change to the present law governing adult children’s claims. If they are retained, they will be no more than “second-tier” claims, which will only be considered after all other testamentary claims have been fully satisfied.

75 OTHER RELATIVES – Grandchildren, stepchildren and parents are currently permitted to make claims under the Family Protection Act 1955. The grandchild’s claim is often used where a child is dead or irresponsible; the court passes part of the child’s entitlement down to the child’s children. There are restrictions on claiming in some cases. Stepchildren, for example, may claim only if they are currently being, or are legally entitled to be, supported by the will-maker (paras 269–271).

76 Instead we propose that support claims should depend on establishing a direct responsibility between the will-maker and claimant. In particular:

77 CONTRIBUTORS’ CLAIMS – People may have contributed to the will-maker’s estate, in various ways and at various times during the will-maker’s lifetime. Sometimes this is done under a contract, in which case it will have been paid for in the normal way. But often those close to a will-maker make no definite arrangements. Under present law, these people may claim under the Law Reform (Testamentary Promises) Act 1949, if the will-maker promised to reward them by will (paras 293–298). Alternatively, there are various common law rights (paras 291–292).

78 We propose that there should be a statutory provision following the general principles of the common law. Broadly stated, it would provide that:

Example of how the proposals would work

79 This example (like those in later chapters) is designed to show the effect of our proposals.

Example 1:

The will-maker died in advanced old age. He had been divorced, and he was estranged from both his former wife and the two children of their marriage. One of these was a son who had 4 children of his own. For the last 20 years of his life the will-maker lived in his own house with a de facto partner. The de facto partner had worked without pay in the will-maker’s business from 1964 on, and nursed the will-maker in his last illness. Apart from her, the only family members who kept in touch with the will-maker were his son’s estranged wife and their 4 children.

The last will was made early in the will-maker’s relationship with his partner. In it, he left $10 000 to her and the remainder to a charity. But later on, according to the de facto partner, the will-maker promised her several times that he would leave her his property. This assertion was corroborated.

When he died, the will-maker left an estate of $239 000.⁴³ Claims were brought by the de facto partner (then aged 76), the will-maker’s daughter (then aged 50), and his son’s 4 children. It was not alleged that any of the claimants were in poor financial circumstances.⁴⁴

80 Under our proposals the claims would be dealt with in the following way. The de facto partner, without needing to prove the promise, would get one half of the property accumulated during the relationship. (It would be different if the will-maker and the de facto partner had intended some other sharing method.) The judge would need to look for property in the partner’s own name. This might be drawn into the sharing regime, in which case she would have to give credit for it. As well as her property entitlement, she might receive a support award. That would give her an additional sum (probably as capital) from the will-maker’s estate.⁴⁵ She would receive an even larger amount if the court upheld the promise in the terms alleged.

81 The rest of the estate might go to the charity named in the will. Under our proposals as they currently stand, we have left it open whether the adult daughter would have a claim. In this instance, where the daughter had little to do with the will-maker for many years, we consider that it is doubtful whether she should have a claim (and she would not have one if any but the first option in para 73 were adopted as the law). The grandchildren would have no claim, because the grandfather had not accepted the responsibility of being their parent on an enduring basis while alive.

82 This outcome may be contrasted with what actually happened in Example 1.⁴⁶ The judge reviewed the family relationship. He referred to the parties’ very different perceptions of the will-maker (as shown in the affidavits) and the “strained and fractured relationships between the parties”. He looked at the financial circumstances of the daughter and grandchildren, though he did not find any of them to be experiencing acute financial hardship.

83 Dealing first with the de facto partner’s claim, he accepted that the promise had been made. He held that it meant that she should be well provided for, particularly in respect of accommodation. He rejected any extra or alternative claim for a beneficial interest in the estate by way of constructive trust. She was awarded $95 000. Though her claim was successful, she was expected to bear all her own legal costs.

84 The daughter was awarded $45 000 under the Family Protection Act 1955. Each of the grandchildren was awarded $16 500 under that Act. The judge pointed out that the grandchildren were estranged from their father and could get no support from him, at a time when they were beginning to establish themselves and “would be assisted in achieving reasonable goals by a lump sum injection of funds now.”

85 This example shows that the Commission’s proposals could make a considerable difference to the way in which the law of testamentary claims is applied. The Commission intends no criticism of the particular judgment, which was well within established patterns of decision. But it is useful to consider where that tradition has led:

• The de facto partner’s claim had to depend, not on the clear merits of her relationship with the will-maker and the work she had done for him, but on the existence of the will-maker’s informal promise, which was uncertain in its terms.
• No enquiry needed to be made into the couple’s affairs as a whole, even though the claimant had property in her own name which perhaps in fairness should have been brought into account.
• The will-maker was obliged to leave a substantial sum to a daughter whom he had seen only twice in the last eighteen years.
• To justify that result the court had to look into strained family relationships over a long period, and try to assess where responsibility might lie for the difficulties.
• The will-maker was also obliged to leave a similar sum, in total, to support his four grandchildren even though he had not been under any obligation to support them in his lifetime, nor had he in fact done so.

86 A will-maker may well have to grapple with these issues. Whether the law should require the courts to do so, however, is doubtful. It does not seem helpful for the courts to revisit the will-maker’s family relationships, unless the task is undertaken with a clearly defined objective, and the relevant principles are well articulated.