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.

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.