New Zealand Law Commission
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46 This chapter summarises our recommendations. It explains each briefly then provides an illustration of how the legislation the Commission recommends would work (para 92). The draft Act provisions and the commentary on them provide greater detail (see pages 35–170). In this chapter and in the commentary, to distinguish them from references to current provisions, references to the draft Act are given in full and in italics, eg, Part 1, section 1, Schedule 1.
47 The Commission’s recommendations and the draft Act are set out mainly according to the rights to claim of particular groups of relatives. In broad terms the Commission’s recommendations and the draft Act provisions to implement them are grouped under these headings:
48 On balance our recommendations 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 restrict claims made by will-makers’ adult children and other relatives.
49 We also set out, in one set of statutory provisions, the rights of people whose actions have contributed to the will-maker’s estate (paras 36–44). 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.
50 Two different types of claim are found in our recommendations:
51 The draft Act does not apply to Mäori when they succeed to Mäori freehold land, Mäori incorporation shares, or trust property under Te Ture Whenua Mäori/Mäori Land Act 1993 (see section 4, para C11).
52 Currently, if the will-maker does not leave his or her widow or widower enough of the estate, the surviving spouse 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, includes 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.
53 Instead, we recommend that:
Widows and widowers may:
54 Our recommendation will make the law conform with well-accepted principles of matrimonial property between living spouses. In particular, the division we recommend:
55 Our recommendation is based on a principle which will spell out when an award will be made, and if so, how much it will be. It allows the court to take account of differences both in economic circumstances and in the nature and consequences of each relationship.
56 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.
57 Instead, we recommend that:
De facto partners (including de facto partners of the same sex) may make both:
58 This recommendation:
59 The recommendation also complies with s 19 of the New Zealand Bill of Rights Act 1990 (see para 24).
60 The Commission recommends that property division and support claim provisions apply to de facto partners,36 whether of the same or opposite sex. But what is a “de facto relationship”?
61 Various efforts have been made to define the term, many of which have been either too rigid to allow justice to be done in each case or have included expressions that are too subjective. Definitions by reference to the nature of the relationship are preferable. Statutes have occasionally used fixed criteria (like living together for a specified period, membership of the household at the time of death, or being maintained by the deceased – dependency – at the time of death). These have the potential to create arbitrary and anomalous distinctions between those protected and those unprotected, without making it significantly clearer the relationships to which the legislation is intended to apply.
62 In particular, proposed minimum time periods for a de facto relationship to have existed are misconceived. If the parties to a relationship have mixed their assets and incomes and committed themselves to the possibility of financial disadvantage as a result of the relationship, then the law should resolve their situation fairly, without regard to the time period involved.
63 Almost all the New Zealand legislation that applies to de facto partners does so by reference to the concept of legal marriage. The wording “relationship in the nature of marriage” is most commonly used (17 statutes use the expression “in the nature of marriage”, even when the legislation includes same sex relationships, for example, the Domestic Violence Act 1995 s 2).37 Courts and tribunals have discussed “relationships in the nature of marriage” in a number of cases.38
64 No other form of words effectively describes how close the relationship must be, in terms of emotional and financial co-dependence. The Commission’s preliminary paper Evidence Law: Privilege (nzlc pp23, 1994) adopted the following definition:
A de facto partner is a person living in a relationship in the nature of marriage (including a relationship between two persons of the same sex). (See section 9(2))
65 Drawing on case law and previous legislative attempts at a definition, the Commission suggested in its Privilege paper that the key factors relevant to whether a relationship was “marriage-like” included the living arrangements of the couple, their emotional and sexual relationship, and any pooling of financial resources. The Commission concluded that these factors were in large part common sense. In the majority of cases, it should be readily apparent whether the relationship is covered. A list of factors relevant to determining whether a person is living in such a relationship is neither necessary nor desirable. The same applies in the law of succession.
66 The Commission accepts that the proposal to link same-sex couples with the concept of a “de facto relationship”, through the terms “in the nature of marriage”, may be controversial. This controversy is sometimes linked with the perception that same-sex couples are more likely to have temporary relationships with no long-term commitment. But the courts will take the temporary nature of the relationship into account in deciding whether it is in the nature of marriage. Courts will also take into account whether there has been commingling of property and whether any financial disadvantage has resulted from the relationship. This is unlikely to occur if the relationship is a temporary and uncommitted relationship (see paras 61–62).
67 Putting to one side the issue of long-term commitment, the issue is about descriptions and symbols. It raises a question about the effects of acknowledging in a statute that the two types of relationships are comparable, and of the linking of gay and lesbian relationships with those in the nature of marriage. But in the Commission’s view, considerations of simplicity and precision of drafting are decisive. We could perhaps devise a separate provision for same-sex couples, not linked explicitly with the concept of marriage. This would serve the same purpose without offending those people who object to the use of the term “marriage” in this context. But it would draw on exactly the same criteria as do the words “in the nature of marriage” (eg, companionship, property sharing, lawful intimacy, financial and other reliance, commitment, and so on). It would be difficult to capture in any other form of words the required intensity of the relationship. Parliament has accepted recently a very similar wording for use in a related context (Domestic Violence Act 1995 s 2).
68 Of those who commented on the definition proposed for de facto partners in the discussion paper, 69% supported it.
69 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 one-eighth to one-fifth of the estate. A child without siblings can receive more than half of the estate.
70 We recommend a clear right to claim support in three cases:
Children may make a support claim only if they are:
71 The Commission considers that separating out the claims of children who are likely to be dependent on the will-maker has these advantages:
72 With two very limited exceptions (see para 77) the Commission recommends:
Adult, independent children should have a claim only in respect of valuable benefits they have conferred on a parent during the parent’s lifetime. (See paras 84–88 and Part 4)
73 No doubt if adult independent children could make only contribution claims many parents would continue to make provision during their lives and under their wills for their children, and to treat their children equally, just as they do now. But this is what they would want to do. The real question is whether, if this is not what they want to do, courts should be empowered to override their wishes and to substitute for the will-maker’s wishes the court’s view of how the estate should be distributed.
74 As far as the Commission can determine from the sociological advice and the submissions it has received, there is no clear and uniform expectation that all New Zealanders must leave their property to their adult children either equally or at all. There would be little or no public support for a legal rule that would compel all or part of a parent’s estate to be shared (in the absence of a partner) equally among adult children at the option of any adult child. We have referred already (see para 34) to the absence of any agreement about what precisely the content of a will-making parent’s “moral duty” to an adult child might be. In the absence of agreement of this kind, judicial rewriting of wills is in the Commission’s view not supportable. The view has been advanced that even so there is a point where the terms of a will are so patently capricious as to justify interference. But this argument employs an extreme case to support a logically untenable proposition.
75 Powers to provide for adult children that are as extensive and indeterminate as those in the present law would, if applied to the living, be judged rightly as unacceptable. No reason has been advanced why they should apply after a will-maker’s death.
76 Finally, the corrosive effect on family relationships of claims by adult children should not be overlooked. There is also the delay that under the present law these claims can cause in the administration of estates and the uncertainty that the possibility of these claims can add to the process of will-making.
77 In dealing with human affairs there are times when logic must yield to compassion. A majority of Commissioners considers that provision should be made for claims other than contribution claims by adult children in two narrow sets of circumstances:
Adult, independent children should also be entitled to make claims:
78 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.
79 We recommend that support claims should depend on establishing a direct responsibility between the will-maker and claimant. In particular:
A child who is not a child of a will-maker, but for whom the will-maker has assumed, in an enduring way, the responsibilities of a parent, may be permitted by the court to make a child’s support claim. (See Part 3)
But no other relative should be able to make a claim.
80 Where the will-maker established an ongoing and nurturing relationship with a child and became responsible for that child, the will-maker’s estate should continue to discharge that responsibility. The Commission suggests that this will achieve a proper balance between certainty and flexibility. Moreover the proposal relies on rules, already established under ss 2, 7 and 99 of the Child Support Act 1991, which apply to will-makers during lifetime.
81 If a will-maker chooses to assume a parent-like responsibility for meeting a minor child’s needs, then the court will be able to make a support award for the child. The amount will be calculated in the same way as the support award proposed for minor and other children. Of course, only will-makers who were custodians (the sole or principal providers, or persons who shared substantially in the provision of a minor child’s ongoing daily care) are likely to have assumed a parent-like responsibility to meet the needs of that child.
82 A will-maker should not be regarded as having assumed an enduring responsibility like that of a parent of a child, simply because he or she had a relationship in the nature of marriage with a parent of a child.
83 The Commission has not overlooked cases where property passes to the will-maker from the estate of a partner who has children from an earlier marriage. These children often fairly expect to succeed to their parent’s property through the will-maker. We also recommend that the estate of a partner who dies first be able to apply for a property division against the surviving partner (in practice applications are most likely to be made against the survivor’s estate). This recommendation provides additional protection for children of the will-maker’s partner who are not children of the will-maker.
84 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 (see paras 36–38). Alternatively, there are various rights under the general law (see paras 39–44).
85 We recommend a statutory provision following the general principles of the common law. Broadly stated, it would provide that:
Contributors and those to whom testamentary promises have been made may make a contribution claim for an appropriate award in respect of their unremunerated services for the will-maker, based on:
86 The Commission considers that the recommendation:
87 The Commission’s recommendation also sets outer limits on when claims should succeed. Awards cannot be made merely because:
88 There will always be difficulties in finding out what the intentions of the parties are. They can only be ascertained by looking at the nature of the services and any discussions which have taken place between the parties. But even if there are no express arrangements, courts should be permitted to make an award if services are substantial and the parties have not determined that the services will go unrewarded. Their silence may be caused not by that determination, but by the closeness of the relationship and their unwillingness to spell out terms which people bargaining at arm’s length would not hesitate to include.
89 We recommend provisions dealing with matters under two general headings.
90 Part 5 provides for matters including:
91 Part 6 concerns matters including:
92 This example is designed to show the effect of our recommendations:
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 four 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 four 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. Claims were brought by the de facto partner (then aged 76), the will-maker’s daughter (then aged 50), and his son’s four children. It was not alleged that any of the claimants were in poor financial circumstances.
93 Under the draft Act 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. She would receive an even larger amount if the court upheld the promise in the terms alleged.
94 The rest of the estate might go to the charity named in the will. Under our draft Act the adult daughter would not have a claim. In cases like this where the daughter had little to do with the will-maker for many years, we consider that it is doubtful whether she should. The grandchildren would have no claim, because the grandfather had not accepted the responsibility of being their parent on an enduring basis while alive.
95 This outcome may be contrasted with what actually happened.39 The judge reviewed the family relationships. 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.
96 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.
97 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”.
98 This example shows that the Commission’s proposals could make a considerable difference to the way in which the law of succession adjustment 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.
99 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.