Contested Estates: Children Challenging an “Unfair” Will

A parent died and in their Will left everything to their long term partner.  The long term partner was not the parent of the deceased’s adult children, who felt that the Will was unfair and that they had been left out of their parent’s estate. 

The children took the partner to Court claiming that they should receive a share of their parent’s estate.

Unfortunately this is not an uncommon situation for people in second or subsequent relationships, who often do not consider what will happen if their partner or spouse inherits everything at the exclusion of their children.

The Family Protection Act 1955 allows children (as well as grandchildren and stepchildren in relevant circumstances) to apply to the Court to receive a share of their parent’s estate (or grandparent’s or step parent’s where relevant), on the basis that they were not provided for adequately. 

The law presumes that parents have a moral duty to maintain and provide for their children, even into adulthood, and so unless there is a clear reason that the duty should not apply, a child may receive a reasonable and appropriate share of their parent’s estate even where they were left out of the Will.

When you are making or updating a Will, it is extremely important to give your legal advisor as much information as possible about your family circumstances. 

Families in New Zealand are often complicated, and blended or strained relationships can make dealing with your affairs after your death more difficult if you have not left clear instructions in your Will. 

It is entirely possible to provide for a second or subsequent partner or spouse, as well as your children, and reduce the likelihood of a lengthy and costly estate battle taking place after your death.