He arotake i te āheinga ki ngā rawa a te tangata ka mate ana
Review of Succession Law
Rights to a person’s property on death
The law of succession is the system of rules that governs who gets a person’s property when they die.
At some point in our lives we will all be affected by succession law. Yet many of the current laws are old, complicated and inaccessible. We’re concerned that they have not kept pace with the social changes in Aotearoa New Zealand and the increasing diversity of families.
We’re looking at who should be entitled to what property from a deceased’s estate. We want to know what you think of the current law and our proposed options for reform.
The Commission is an independent, publicly-funded agency that provides law reform recommendations to the Government. We will use your submission to inform our recommendations when we report to the Government later this year.
Consultation closes on 10 June 2021.
What Our Review Is Considering
Claims by Partners for Relationship Property
Under the current law a surviving partner can choose to take their share of relationship property or to keep what they would be entitled to under the will or on intestacy …
Currently, if the deceased does not leave enough property to their partner in their will, or if the deceased died without a will and their share under the intestacy regime is too small, the surviving partner could apply under the Property (Relationships) Act 1976 to divide the couple’s relationship property. This will usually result in the surviving partner receiving a half share of that relationship property.
The law tries to ensure the surviving partner is no worse off when their partner dies than if they had hypothetically separated.
Take Aaron and Talia’s story…
- Aaron and Talia have been in a de facto relationship for 10 years when Talia dies. For most of their relationship the couple live together in a house that Talia has owned for 30 years. Both Aaron and Talia have investments and savings they acquired before meeting each other. Both have adult children from former relationships.
- In Talia’s will, she gifts her investment shares to Aaron (worth $50,000). The home (worth $800,000) and anything remaining, she leaves to her children.
- Aaron applies for a division of the relationship property.
- Under the current law, Aaron would lose the $50,000 of gifts under the will but would be entitled to a half share of the family home ($400,000). Aaron’s savings and investments would be considered his separate property so he would not have to share this with Talia’s estate.
- A partner who chooses to divide their relationship property may not receive the gifts the deceased left them in the will. Some people think a partner should be able to claim their half share of the relationship property (which is arguably “their property”) plus gifts from their deceased partner’s estate. On the other hand, if a partner received half the relationship property and the gifts, they might get more property than the deceased intended. The other beneficiaries might then get less than the deceased intended or miss out altogether.
- The current definition of relationship property can lead to unfair outcomes. For example, when one partner owns a house before they enter a relationship and the couple choose to live in that house as the family home, the full value of the home will be divided as relationship property even though it was acquired with no connection to the relationship.
Some of the law should not change. We propose that a surviving partner should keep their right to choose to divide their relationship property when their partner died, and that an eligible partner would still include a husband, wife, civil union partner or de facto partner of three years or more.
But we think other parts of the law should be reformed.
We propose a “top-up” approach. This means that the surviving partner would keep whatever gifts were made for them under the will. They would then receive from the estate whatever further property is needed to top-up their entitlement to the full value of their share of relationship property.
We also propose that the reforms recommended in the Law Commission’s recent review of the Property (Relationships) Act 1976 should apply.
Relationship property would include any property the partners acquire during the relationship (unless it is a gift from a third party or an inheritance), any family chattel (like furniture and cars), and property acquired for the couple’s common use or benefit. Where the family home was acquired before the relationship or as a gift or inheritance, it would no longer be considered relationship property but any increase in its value during the time it was used as a family home would be relationship property.
Continuing Aaron and Talia’s story …
In the 10 years that Aaron and Talia live together in Talia’s house, the home increases in value by $400,000. Under our proposal, Aaron would be entitled to half of this ($200,000). Aaron’s entitlement from Talia’s estate would be made up of the gifts he received under the will (worth $50,000) and an additional $150,000 to top up the amount to the total of his relationship property entitlement.
Claims by Family Members for Provision
If family members think the provision they will get from the deceased’s estate is insufficient for their “maintenance and support”, the current law allows them to go to court to claim more from the estate…
Under the Family Protection Act 1955 certain family members may go to court to claim property from a deceased relative’s estate for their maintenance and support. For example, a family member might make this claim if they are given nothing or less than another family member received.
The current law applies to a deceased’s partner and child. In certain circumstances, it will also apply to a deceased’s stepchild, grandchild and parent.
The amount the court will award will depend on the claimant’s specific circumstances, their relationship with the deceased and other relevant factors such as the total value of the estate and who else might be receiving property from the estate. The courts have interpreted “support” as meaning recognition of belonging to the family. An adult child, for example, may make a claim against the estate if they feel their parent hasn’t properly recognised them in the will, even if they are financially secure.
Take the story of Ada…
- Ada dies leaving an estate of $1 million.
- She is survived by her partner Henare and her two adult children from her first marriage, Ngaio and Rachel. They are in their 50s. Ada and her daughters saw each other once or twice a year but were not close.
- Ngaio owns two houses and is employed full time. Rachel has no major assets and no regular employment.
- In Ada’s will, she gives each of her children $25,000. The rest she leaves to Henare.
- Ada’s daughters claim further provision from the estate.
- The Court decides that Ada has breached her duty to make proper provision for the maintenance and support of her adult children. The Court increases the amount given to each child. Ngaio receives an additional $75,000, while Rachel receives an additional $175,000 because of her poor financial circumstances.
- The current law doesn’t explain the reasons why someone must provide for certain family members. A court uses its discretion to decide whether the deceased had a moral duty to provide for that person and whether they breached that duty by not providing an adequate amount. It can be difficult to predict what the outcome of a case would be, which makes it hard for claimants and their lawyers to know the prospect of success. It also makes it difficult for will-makers to know how much of their estate they should leave to a family member to avoid a dispute after they die.
- The law may be inconsistent with current public values and attitudes. In particular, the law restricts people’s freedom to decide who should be given their property when they die. In addition, family members who might not be considered “deserving” because they are well-off financially may still be able to claim a share of the estate. On the other hand, many people may think that will-makers should have to recognise their family members by making provision for them.
- Estate disputes can severely damage relationships between the surviving family members. They can also end up costing the claimants or the estate a lot of money and delaying the distribution of estate property.
We are proposing three options for reform. We prefer the first option, but we are interested in feedback on all three options. Options 2 and 3 could be added to option 1.
We propose that the deceased’s partner and children under a certain age remain able to claim provision from the estate for their maintenance needs. A will-maker would retain their right to decide who inherits from them subject only to similar duties they had when alive. The law would be more predictable than it is today.
A surviving partner who does not have sufficient resources to maintain a reasonable standard of living would be able to claim provision from their deceased partner’s estate. Whether the court grants an award will depend on whether the partner has suffered economic disadvantages from the relationship or its end, such as taking time out of the workforce to care for the couple’s children. The length of the relationship, the partner’s responsibilities for the deceased’s children and the partner’s employment prospects will also be relevant considerations.
We also propose that the deceased’s children be entitled to provision from the estate for their maintenance and to help them be educated and assisted towards becoming economically independent. To make this claim, the child would need to be under a certain age. We’re considering three age limits:
- 18 years - because that is when young people obtain most of the general rights and responsibilities associated with adulthood. It is also the age that parents, while they are alive, generally stop being legally responsible to provide for their children.
- 20 years - because that is the legal age of majority in Aotearoa New Zealand and it would mean that any 18 or 19-year-olds who might still be in secondary school are included.
- 25 years - because young adults may still be maturing towards independent adulthood. They might be studying or just starting work and more commonly rely on parental assistance.
An eligible child would include the deceased’s natural and adopted children. It would also include children for whom the deceased had assumed parental responsibilities. This might be a whāngai child, stepchild or grandchild.
In deciding whether to make an award and how much to award, the court must consider certain factors like the child’s age, stage of development and level of education, what support the deceased provided the child and what other sources of support are available to the child. If the child is under 18 years, the award would be paid to the child’s guardian.
Continuing Ada’s story…
- Under option 1, neither Ngaio or Rachel would be entitled to make a claim for further provision from Ada’s estate. Just as Ada was not legally required to provide for her adult daughters while she was alive, she would not have to provide for them after her death.
The second option is that a disabled child of the deceased would be entitled to provision from the estate where they do not have sufficient resources to enable them to maintain a reasonable standard of living.
A disabled child would be eligible if they had depended on the deceased immediately before death or if their disability had occurred before they had reached the cut-off age above (18, 20 or 25 years).
Take Jonathan’s story…
- Jonathan dies and leaves his estate worth $200,000 to charity.
- He is survived by his son, Hēmi, aged 40. Hēmi was born with severe physical and intellectual disabilities and requires full-time care. He lives in a residential care facility paid for by the state. Jonathan never had a relationship with Hēmi but paid child support for him until he was 18.
- Under option 2, Hēmi would be eligible to claim further provision from Jonathan’s estate. A court would consider the costs of his care and that he will always need this care. A court might award the full $200,000 to Hēmi.
The third option is that all children regardless of their age would be eligible to provision from their parent’s estate to recognise the importance of the parent–child relationship. The court should award only the minimum amount appropriate to acknowledge that relationship. This award would rank lower than the others so it is possible nothing would be awarded if the estate was small and there were several competing claims.
Continuing Jonathan’s story…
- Suppose that Jonathan also had another adult son, Ihaia, with whom he never had a relationship. Ihaia was employed full-time and owned his own home. He is without disability.
- Under option 3, Ihaia would be eligible to claim provision from Jonathan’s estate to recognise the importance of the parent/child relationship.
- In this example it is unlikely that Ihaia will receive anything because Hēmi’s claim takes priority and it is likely the court will award Hēmi the full $200,000 in the estate. However, if the estate was larger or Hēmi needed less support from Jonathan’s estate, Ihaia might be awarded a small amount.
Claims by Contributors
A person who does work for the deceased or provides them with property with an expectation they will get something from the estate may be able to claim against the deceased’s estate…
People may contribute to a person who dies or their estate in various ways. They might provide the deceased with money or other property (such as a new barn on the family farm) or they might contribute services such as labour or personal caregiving. These contributions can be of significant value to the deceased or their estate. For example, an older person might rely on personal caregiving to remain living comfortably in their own home.
Sometimes the parties may have a binding contract a court can enforce but often close friends and family do not make formal arrangements for payment. Yet, the contributor may think it is fair they receive some reward for their contributions. In these situations, there are several claims the contributor might make:
- They might claim under the Law Reform (Testamentary Promises) Act 1949 when they have performed services or work for the deceased who promised to reward them in their will.
- They might be able to prove they made the contributions on the reasonable expectation they would have an interest in the deceased’s property (a claim of constructive trust).
- They might be able to prove the deceased had encouraged them to expect they would receive an interest in the deceased’s property and they relied on this expectation (a claim of estoppel).
- They might be able to prove that it is unjust for the deceased or their estate to retain the benefit at the contributor’s expense (a claim of unjust enrichment).
- They might be able to prove there was a mutual understanding that the contributor expected to be paid for the services (a claim of quantum meruit).
Take Ben and Seini’s story…
- Ben and Seini are brother and sister. Ben owns a second home. He lets Seini live there because Seini has nowhere to stay. Over the next 18 years Seini stays in the home. She takes responsibility for paying the mortgage and rates for the property. She does all the upkeep and improves the property, paying for all the materials herself. Ben tells Seini she can keep the house when he dies.
- Ben dies and leaves the house to his son. He leaves $10,000 to Seini.
- Seini claims an interest in the property because of her contributions to the home and the expectation she would have an interest in it.
- Seini might be able to bring her claim under the Law Reform (Testamentary Promises) Act. She might also be able to claim constructive trust, estoppel, unjust enrichment or quantum meruit.
- Under the present law a contributor might make several similar claims against an estate relating to the same contributions. Most of the law is not set out in a statute so it is difficult for a contributor to know if they have a claim. Pursuing multiple claims generally increases the time in court and the legal costs.
- Each claim has a slightly different focus and might result in a different outcome. A court might award a contributor money as payment for their services or they might get partial or full ownership of specific property. With so many options, it is difficult to predict the outcome, which can discourage people from settling claims out of court.
We propose that the laws in this area should be combined into a single claim that would be set out in a new statute. A person would be able to make a claim where they provided a benefit to the deceased or their estate, by contributing significant services, work or property. A court could award compensation to the contributor if the benefit was of value and the contributor had not been fully compensated.
A court would not award compensation where the contributions were a gift, the contributor knew the deceased did not intend to compensate them for the benefit, or the contributor was required to provide the benefit under a contract or other legal obligation.
See our Issues Paper for further details of how this claim would work.
Continuing Ben and Seini’s story…
- Seini is likely to have a contributor’s claim. The ongoing maintenance and improvements to the house were of significant value and Ben was aware of these.
- The court would consider how much time and money Seini spent, her expectation that she would keep the house when Ben died and what impact the award might have on Ben’s son. The court might award Seini money from Ben’s estate or grant her an ownership interest in the house itself.
It would be a considerable change to bring these laws together as one claim and it will take time for courts to develop their understanding of the new law. Because of this, we are considering an alternative option which is to keep the current law but to redraft parts of it to make it easier to understand.
Dying Without a Will (Intestacy)
When someone dies without a will, the Administration Act 1969 directs how a person’s estate should be distributed (the intestacy regime)…
When a person dies without a valid will, their estate is distributed according to the Administration Act 1969 (the intestacy regime). The intestacy regime specifies which family members should get the estate property, and how much they should get.
The deceased’s partner will get the largest share of property in most cases.
If the deceased doesn’t have living parents, children, grandchildren or great-grandchildren, the partner gets everything.
If there is a partner and children, the partner gets the personal chattels (such as the deceased’s car, furniture and household items), a fixed amount of money which is currently set at $155,000 and one-third of what remains. The other two-thirds is shared equally between the children.
If there are no children but one or both parents, the partner gets the personal chattels, $155,000 and two-thirds of what remains. The parents would get the other third.
If the deceased had children but no living partner, the children would share everything equally.
What if the deceased has no living partner or child?
If the deceased’s parents are still alive, they each get half the property.
If the parents have died, any siblings of the deceased share the property.
If a child of the deceased has died, but that child has children (the deceased’s grandchildren), those children are entitled to share in the estate. They take an equal share of what would have gone to their parent.
Suppose the deceased doesn’t have any living partner, child, parent, siblings or nieces and nephews but their mother’s father (the deceased’s maternal grandfather) is alive and their father’s brother and sister (the deceased’s paternal aunt and uncle) is alive. In that case, half of the deceased’s property would go to the deceased’s maternal grandfather and half would be shared equally between the deceased’s paternal aunt and uncle so that they each got one quarter.
Take Douglas’ story…
- Douglas dies without a will. He is survived by his partner Andrea and two children. His estate is worth $300,000.
- Under the current law, Andrea would get the personal chattels, $155,000 and one third of the remaining $145,000 (about $48,000). Each child would get about $48,000.
- The intestacy regime was created a long time ago. It may not reflect people’s expectations today, particularly those who are more likely not to make a will. For example, rates of will-making are lower among Māori, Pacific peoples and Asian communities.
- Families in Aotearoa New Zealand have changed a lot during this time. Blended families are more common, people are having fewer children or no children, and multiple generations live together.
- The $155,000 that a surviving partner is entitled to when the deceased is survived by either a partner and children or a partner and parents can cause problems. In some cases (especially with large estates), people think the partner’s share is not enough but in smaller estates, the $155,000 might be most or all of the estate and the deceased’s children, for example, might miss out entirely.
If the deceased is survived by a partner and children, we’re considering three options. In all options, there will no longer be a fixed payment (the $155,000) to the partner.
The partner takes the whole of the estate where all the deceased’s children are of that relationship. If the deceased has children from another relationship, the partner would get the personal chattels and half of what remains. The children from the other relationship would share the other half.
Often a person will leave everything to their partner by will if their children are only of that relationship. They might expect that their partner will look after their children, or that their children will inherit when their partner dies.
The partner’s share decreases depending on the number of children, even if the deceased’s children are also the partner’s children. If the deceased has one child, the partner would get the personal chattels and two thirds of the estate. If the deceased has two or more children, the partner would get the chattels and half of the estate. The children would take equal shares of the remaining estate.
Some people might think it is fairer for the surviving partner to get a greater share when there are fewer children.
The partner takes the personal chattels and half of what remains. The children would then take equal shares of the other half.
This is the simplest option for ensuring that partners and children are provided for.
What would happen in Douglas’ story…
- … if Andrea was the parent of both Douglas’ children?
- Under option 1, Andrea would get the whole estate.
- Under options 2 and 3, Andrea would get the chattels and $150,000. The children would each get $75,000.
- … if Andrea was not the parent of one of Douglas’ children?
- Under each option, Andrea would get the chattels and $150,000. The children would each get $75,000.
Under our proposal, if the deceased doesn’t have any children, grandchildren or great-grandchildren, then their partner will get everything, even if the deceased’s parents are alive.
We don’t think there should be any change to the current law that the deceased’s parents take the whole estate when the deceased has no living partner, children, grandchildren or great-grandchildren.
We’re considering two options for when the deceased has no more immediate family than their grandparents and aunts or uncles.
- Option 1: We keep the law as it is so that the deceased’s property is divided between the maternal and paternal sides of their family, first going to the grandparents.
- Option 2: We change the law so the that the deceased’s property is first shared between all living grandparents (both maternal and paternal). If there are no living grandparents, it is then shared between all living aunts and uncles.
Te Ao Māori and Succession
Kia ora, ā, nau mai. This section discusses succession matters that are kaupapa Māori and asks for your feedback. Our review does not include looking at what happens to whenua Māori under Te Ture Whenua Māori Act 1993, but does look at succession for all other property.
We set out three approaches for reforming how tikanga is recognised in a succession context.
Where you would like to provide feedback on any of the other sections of the website, we ask that you provide your feedback in that section.
The first approach gives Māori the choice to have Māori succession matters dealt with entirely by tikanga instead of the current law and the courts. It allows Māori the freedom to choose whether they want tikanga or state law to determine what happens when Māori die.
This approach raises profound questions about the relationship between tikanga as the first law of Aotearoa New Zealand and state law which go beyond considering how succession should work. Because of this, the issues paper does not set out in detail how this option might work in practice.
Manaia grew up in Rotorua and has lived in the centre of Te Ika-a-Māui for most of her life. She is from Ngāti Tūwharetoa and grew up learning Ngāti Tūwharetoa tikanga from her whānau. Manaia owns a house in Rotorua and has some savings in a bank account. Her husband passed away some years ago, but one of her sons and his wāhine and tamariki live with her and look after her.
Manaia has decided that it’s time to think about what should happen when she dies. Under this first approach, she would have some options open to her.
She could choose to not make a will and instead express a desire for her whānau to manage her affairs according to tikanga after she dies. She might choose to tell her whānau what she wants to happen. This may involve a whānau hui on the marae or in the kāinga to discuss these important matters or maybe through an ōhākī.
She could express her wishes in a will in a way that reflects the tikanga of her hapū.
There might be disagreement within the whānau about what should happen to Manaia’s house and savings. The whānau could decide amongst themselves how to resolve matters, or they could agree to involve others from the whānau or hapū to help them reach a decision. The whānau might also choose to rely on state law to determine what should happen. If there were different opinions about how to resolve matters, there would need to be rules about how tikanga and state law work together.
The second approach specifically excludes taonga from state law so that succession to taonga can be settled by tikanga. It leaves all other property (except whenua Māori) to be dealt with by state law.
Miriam lives in Pōneke but grew up in the far north where the rest of her whānau lives. When her mother died some years ago, she left a pounamu tiki to Miriam that had been worn by generations in her family. All the whānau agree it is taonga.
Miriam dies without making a will. Under this approach, most of what she owned would go to certain whānau members according to a fixed set of rules in state law. However, anything she had that the whānau considered taonga, such as the tiki, would not.
These items that are excluded would go back to the whānau collectively to decide who the new kaitiaki should be. In fact, even if Miriam had made a will that included the taonga, it would still fall back to the whānau. They may choose to respect any wishes Miriam expressed or make their own decision about who should hold the taonga.
Ideally, the whānau is able to resolve these matters amongst themselves and if they are not, they are able to call upon help from within their extended whānau or hapū to help them resolve any issues. If they cannot, and as a last resort, the whānau might choose to go to the Māori Land Court.
The third approach involves looking at both tikanga and state law and making better law for Aotearoa New Zealand that recognises both Māori and non-Māori perspectives. This law would use existing tools, such as the courts and legislation, but changes would be made so that the law and the methods for resolving disputes recognise tikanga values. This new law would apply to everyone.
Sarah and Nikau’s story…
Sarah and her partner Nikau have looked after Nikau’s koro, Rawiri, for the last 5 years. Rawiri was living with Sarah and Nikau and relied on them in his old age, for which he was immensely grateful. It also meant he could spend time with his mokopuna whenever he liked. Nikau is from Ngāpuhi and is the youngest of four siblings, and Sarah moved to Aotearoa New Zealand from the UK when she was young.
Rawiri recently passed away. In his last will, which he made 10 years ago, he left most of what he owned equally between his four children. However, Rawiri had left a pounamu patu, heitiki and korowai to the mātāmua of the whānau, Pita. This was the tikanga Rawiri’s father had taught him, who had left these items to Rawiri as the mātāmua of his generation. However, before he passed, Rawiri had told Sarah and Nikau that he would leave them one of the three taonga he held in return for all they had done for him.
Under the current state law, Sarah and Nikau may have a claim because of the promise Rawiri had made to them about the taonga and all they had done for Rawiri over the last five years. If they made such a claim, Pita may be forced to hand over one of the taonga. Any legal claim under state law that Sarah and Nikau may have would not be sensitive to the tikanga that is clearly relevant to the situation.
State law that recognised tikanga might put the relationships between the parties first and ask what needs to be done in order to restore balance in the whānau and ensure the ongoing relationships between everyone involved. This law might recognise that in caring for Rawiri, Sarah and Nikau were recognising and nurturing his mana and that the wider whānau may have an obligation to respond in a way that ensures a balance is reached.
Submit Your Response
Thank you for providing your feedback to our questions!
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