Can my will be overturned?

Sometimes a will may be successfully challenged in court on the following grounds:

  • That it is invalid (has been signed or witnessed incorrectly).
  • If you had a moral duty to provide for somebody but failed to. This is a claim under the Family Protection Act.
  • If your spouse/partner of at least three years (less if you have had a child together) decides to claim half of the relationship property instead of accepting what was left for them in the will.
  • If you had promised to leave something to somebody on your death for services that they had performed but never updated your will. This is called a testamentary promise.

If you would like further advice about wills, please make an appointment with Malcolm McKenzie or Scott Donaldson.

What is a living will?

A living will is a document that sets out your instructions for medical care and treatment in the event that you are unable to communicate your wishes. It is very common for somebody with a terminal illness to create a living will in advance.

If you would like further advice on this matter, please make an appointment with Scott Donaldson or Malcolm McKenzie.

I want to revoke my enduring power of attorney, do I need to tell my attorney?

We recommend that you notify your attorney if you wish to revoke your enduring power of attorney. Unless the attorney has been notified of the revocation, they may still act under the presumption that they have approval. It is best to seek further legal advice if you are considering revocation.

If you would like further advice regarding enduring powers of attorney, please make an appointment with Malcolm McKenzie or Scott Donaldson.

I don’t get on with one of my children, will he have a claim on my estate when I die?

A child left out of the will could potentially succeed in a claim for maintenance and support under the Family Protection Act.

These claims are all considered separately on their own facts, but the main question is whether or not the deceased had a moral duty to leave something in his/her will to the claimant. The answer to this question is usually determined with reference to factors such as any other competing moral claims, the financial position of the claimant etc.

The view that is most commonly taken by the courts in New Zealand is that parents always have a moral duty to leave something to their biological children in their estate. Bearing this in mind, it is very likely that your child will have a successful Family Protection Act claim on your estate if you decide not to include him/her in your will.

If you would like further advice regarding potential claims on your estate, please make an appointment with Scott Donaldson or Malcolm McKenzie.

When is a will valid?

There are various requirements needed in order for a will to be valid. Section 11 of the Wills Act lists these requirements:

  • The will must be in writing
  • It must be signed by the will-maker or by someone with direct authorisation from the will-maker
  • It must be signed in the presence of at least two witnesses

If the will fails to comply with these requirements, the High Court has the ability to validate it if they believe that it expresses the testamentary intentions of the deceased.

If you would like further advice regarding matters related to wills, please make an appointment with Malcolm McKenzie or Scott Donaldson.

How do I appoint guardians for my children?

Your partner can be appointed as a guardian for your children upon application to the Family Court.

The acceptance of this application is subject to certain conditions:

  • The partner must have been sharing day-to-day care of the child for at least one year
  • Both parents must agree to the appointment of the guardian (unless one is deceased)
  • The partner must not have been involved in any proceedings relating to the harm of children, domestic violence, or care and protection proceedings

Testamentary guardians can also be appointed by the parent’s will upon their death. This appointment, however, is subject to challenge from other guardians of the child.

If you would like further advice regarding appointing a guardian for your child, please make an appointment with Scott Donaldson or Malcolm McKenzie.

How do I know if I’m in a de facto relationship?

Being in a de facto relationship can have various legal and financial implications, and is therefore an important thing to consider.

The broad meaning of the term, as outlined in the Property (Relationships) Act, is two adults living together as a couple. Whether or not you are living together as a couple will depend on many factors including the duration of the relationship, financial dependence, degree of commitment, care and support of children etc. While none of these elements are necessarily compulsory for a de facto relationship, they are all relevant considerations in determining whether the parties are fulfilling the requirement of living together as a couple.

If you would like further advice regarding the legal status of your relationship, and the implications that come with it, then please make an appointment with Scott Donaldson or Malcolm McKenzie.

Will my trust protect me from relationship property claims?

No. It is very dangerous to assume that assets held on trust are automatically protected from relationship property claims.

There are many situations in which an ex-partner may succeed in a relationship property claim against your trust assets. Most examples of this include some form of contribution or improvement to the assets made by the partner.

The best way to guarantee that your assets are protected from a relationship property claim is by entering into a property agreement. This provides certainty over which assets each party can claim upon any future relationship break-up.

If you would like further advice regarding relationship property, please make an appointment with Scott Donaldson or Malcolm McKenzie.

I just got married, is my old will still valid?

The general rule is that an old will is automatically revoked upon the marriage (or civil union) of the will-maker. Due to this, in most cases your will is invalid upon entering into a new marriage.

However, there are some exceptions. For instance, when the will has been made in contemplation of the marriage/civil union, it may remain valid. There are further exceptions regarding powers of appointment in relation to wills.

For further information on any potential exceptions, please make an appointment with Malcolm McKenzie or Scott Donaldson.