Estates - Parry Field Lawyers

An executor has a duty to carry out the provisions of the will.

What should an executor do when beneficiaries or family members are not provided for under the will or have issues with the will?

An executor’s primary duty is to carry out the directions of the will (see this article for details about that duty). Therefore, it is not usually appropriate for you as an executor to agree to a compromise with a complainant without the approval of all the beneficiaries.

Once a claim has been made, the Estate cannot be distributed to the beneficiaries until the matter is resolved. It is in everyone’s interests to obtain a speedy resolution.

Thankfully, disputes can often be resolved (with or without the need for proceedings). As an executor, you should help provide a space for settlement discussions to take place.

If all the beneficiaries of the will agree to a resolution, they can sign what is referred to as a Deed of Family Arrangement, which sets out the basis on which they want the Estate to be distributed.

As an executor, you will want the terms of the Deed of Family Arrangement to protect from any potential claim that you breached your duty as an Executor. We have experience drafting these documents so please contact us for assistance.

What happens if matters go to Court?

When a claim is made against an Estate, it is made against the Executor as the named party. Usually the Estate is liable for the associated legal costs, not the Executor personally. (There are exceptions if the Court finds that the Executor took inappropriate actions which increased the costs of the proceedings).

The appropriate response for an executor to court proceedings depends on the type of claim being made.

If the claim is under the Family Protection Act 1955, the Executor’s duty is to accurately inform the Court of the Estate’s assets and liabilities and any other relevant information about the Estate. The Courts have held that the Executor should not actively defend the proceedings (i.e. they should not try and prove that the provisions of the will should be followed). It is only other beneficiaries of the will that are able to take that active defence.

For claims made under the Law Reform (Testamentary Promises) Act 1949, the Executor is entitled to defend the proceedings. However, if the beneficiaries of the Estate are opposing the claim, the executor can take a neutral stance.

If the claim is being made by an alleged creditor of the Estate, the Executor should actively defend the proceedings if it considers that the creditor’s claim is not legitimate.

Please see these articles for more information about Family Protection Act and Testamentary Promise claims.

We have experience assisting Executors to manage claims against an Estate, and to assist beneficiaries in negotiating a resolution. Please contact us to see how we can help you.

This article is general in nature and is not a substitute for legal advice. You should talk to a lawyer about your specific situation. Reproduction is permitted with prior approval and credit being given back to the source.

What happens if a family member does not provide for you in their will?

It is always difficult when a loved one passes away. But this can be made significantly worse when someone discovers that they have not received the provision under the will that they expected. What can you do if you think you have not been properly provided for?

The law provides for certain family members to challenge a will on the basis that the will-maker did not adequately provide for them under the Family Protection Act 1955.

Who can make a claim?

The Family Protection Act entitles the following people to make a claim:

the spouse or civil union partner of the deceased;
a de facto partner who was living in a de facto relationship with the deceased at the date of his or her death;
the children of the deceased;
the grandchildren of the deceased;
the stepchildren of the deceased (if they were being maintained wholly or partly or were legally entitled to be maintained wholly or partly by the deceased immediately before his or her death); and
the parents of the deceased (in limited circumstances).

There is no provision for siblings of a deceased to make a claim.

What does it take for a claim to succeed?

To succeed, a claimant must convince the Court that the will-maker failed to “provide adequately for the claimant’s proper maintenance and support”. This does not just reflect economic need, but also the importance of recognising a claimant’s importance as part of the family.

It’s important to note that mere unfairness or disparity between beneficiaries is not sufficient to bring a claim under the Family Protection Act (for example, that one sibling got less than the others).

The success of a claim will depend on the particular facts of the case, but relevant factors include:

The economic need of the claimant;
The size of the Estate and the competing moral claims of other family members and beneficiaries under the will;
The duration and nature of the claimant’s relationship with the deceased;
Any gifts made to the claimant during the deceased’s lifetime; and
Whether there was a rift between the deceased and the claimant and, if so, who was responsible for that.

If successful, the Court is still limited to awarding no more than what is necessary to give adequate provision. The Court will not rewrite a will on the basis of what someone else considers to be fair.

Timeframe for a claim

In order to be effective, a claim must be brought against an Estate before the funds of the Estate have been finally distributed to the beneficiaries.

Where an executor has no notice of any claim against the Estate, the executor can distribute the Estate’s assets 6 months after probate is issued.

Under the Administration Act 1969, a potential claimant can prevent distribution of the Estate for 3 months if notice is given to the Executor that he or she intends to challenge the Estate. To get the most out of this 3 month window, notice of intention should be given just prior to 6 months after probate. This extension can only be obtained once, after which the Executor is safe to distribute if no Court proceedings have been served on the Estate.

Any claim must also be brought within 12 months from the date of probate (we explain probate in this article). A claimant can apply to the Court for leave to extend this timeframe, but extensions are rare and will only succeed if the Estate has not already been distributed.

How to make a claim

A Family Protection Act claim can be brought in either the Family Court or the High Court. The appropriate court will depend on the size of the estate, the complexity of issues, and whether there are already other proceedings relating to the Estate.

The documents required to initiate a claim differ depending on which Court is being used.

Once a claim is brought, it will need to be served on the Estate and other beneficiaries, who can then choose to oppose the application. Where a claim is opposed, the Court will usually ensure that the parties have the opportunity to attend some form of mediation to try and resolve the dispute without the need for a full hearing.

We have experience in both bringing and defending claims in both courts, and in resolving disputes between beneficiaries. Please contact us to see how we can be of assistance.

This article is general in nature and is not a substitute for legal advice. You should talk to a lawyer about your specific situation. Reproduction is permitted with prior approval and credit being given back to the source.

What duties apply to an executor?

We assist many people to prepare their wills, as well as helping executors to manage estates. A common question we get is “what duties apply to an executor?” To keep you safe, we outline here the key duties you should be aware of.

What is an executor?

An executor is the person a will-maker appoints to carry out their Will when they die.
An administrator is the person appointed by a court to administer a deceased person’s estate (usually where the person died without making a will, this is called dying “intestate”).
This article primarily focuses on executors, but the general duties and comments about resolving Estate disputes will be of equal relevance to administrators.

What are the responsibilities of an executor?

After an executor has been appointed, all property of the deceased will immediately come under the legal ownership of the executor (on behalf of the Estate).

The duties of an executor include:

To gather in all of the deceased’s assets;
To bury the deceased and pay for funeral expenses out of the Estate’s assets;
To pay any debts owed by the will-maker; and
To distribute the remaining assets in accordance with the will or intestacy laws.

In all of your actions as an executor, you owe duties to the beneficiaries of the Estate to act in their interests, rather than your own. An executor must also act even-handedly or fairly between the beneficiaries.

We have assisted many people to manage their responsibilities as executors and are happy to talk with you about how we could help you.

This article is general in nature and is not a substitute for legal advice. You should talk to a lawyer about your specific situation. Reproduction is permitted with prior approval and credit being given back to the source.

You may be surprised to be named as an executor in a friend or family member’s will. Hopefully it has been discussed with you in advance as the role brings with it legal duties (see this article for details about those) and, depending on the Estate, may require a significant amount of time from you. While the costs you incur as an executor (such as paying professionals or funeral expenses) will be reimbursed from the Estate, only professional executors (such as lawyers) will be paid for the time they spend managing an estate.

Do I have to be an executor?

If someone appoints you as their executor, you are not required to accept this. However, bear in mind that once you decide to take on the role of executor, you cannot later change your mind.

In order to help you make this decision, you are allowed to investigate the will-maker’s estate (i.e. consider how big the estate is and whether there are any complicating factors). However, you will need to be careful not to take possession of or make decisions about the will-maker’s property, as the Court may treat that as you accepting the position of executor.

Some people will not be legally allowed to become an executor. For example, someone who is not of sound mind or someone who is a bankrupt.

You should not accept an appointment if:

you do not believe that the will which appoints you is legitimate – perhaps because the will-maker may have been of unsound mind at the time it was made. (If you have concerns whether the will-maker was of unsound mind, we can discuss this with you).
you consider that you have a claim against the Estate because you consider that the will does not properly provide for you (See this article for more information about whether you have a potential claim).

There are also circumstances which may suggest you should not take on the appointment. For example, if you live overseas and infrequently return to New Zealand, it will be more complicated for you to carry out your role and would likely result in higher costs for the Estate to bear.

What happens if I decide not to accept an appointment as executor?

If the will appoints multiple executors or a back-up executor, then those individuals can proceed to accept their appointment.

If you are the sole executor named in the will, then someone will need to apply to the Court to be appointed as the administrator (with first preference given to a close family member).

What about my personal interest in the Estate?

It is common for a will-maker to appoint a family member as their executor who is also going to be a significant beneficiary under the will.

This means that if a claim is made against the Estate, you will have obligations in your role as an Executor, but also a personal interest in how you want the dispute to be resolved. In these situations, it is crucial to get independent legal advice in your personal capacity. The lawyers acting for the Estate can only advise you as to how the Estate should proceed. The same lawyer acting for the Estate will not be able to provide you with advice personally.

If I do agree to be the executor, what happens next?

One of the first steps for an executor is usually to apply to the High Court for probate. We explain more about that process in this article.

We have experience in assisting executors, and providing advice to people in their personal capacity. Please contact us to discuss how we can help you.

This article is general in nature and is not a substitute for legal advice. You should talk to a lawyer about your specific situation. Reproduction is permitted with prior approval and credit being given back to the source.

If you are able to demonstrate that a deceased person failed to fulfil a promise to leave you something after they die, how much will the Court give you?

All claims under the Law Reform (Testamentary Promises) Act (“TPA claim”) are fact-specific. If a claimant succeeds in convincing a court that they have a valid claim (see this article for details on what that requires), the Court will make an award out of the assets of the Estate.

When assessing what size of an award is appropriate, the Court takes into account:

The value of the services or work;
The value of what was promised;
The amount of the estate; and
The nature and amounts of the claims of other persons in respect of the estate.

It can be difficult to assess the commercial or market value of the services performed, especially where they are intangible.

The Court will principally focus on the deceased’s perception of their value. However, there cannot be a major disproportion between the award and the value of the services.

The Court will also take into account any reciprocal benefits that the claimant received from the deceased – whether those are tangible things like payment of groceries, or intangible such as a return of companionship and support.

All TPA cases are heavily influenced by their unique context. Please contact us for specific advice. We have experience in both bringing and defending TPA claims.

For more details about what it takes to succeed in a TPA claim, see this article.

This article is general in nature and is not a substitute for legal advice. You should talk to a lawyer about your specific situation. Reproduction is permitted with prior approval and credit being given back to the source.

What happens if someone promises to leave you something after they die, but then fails to actually do so? If you performed services for the deceased person in reliance on that promise then you may have a claim under the Law Reform (Testamentary Promises) Act 1949 (“TPA claim”).

To succeed in a TPA claim, you would need to prove that:

You rendered services to, or performed work for, the deceased person during their lifetime;
The deceased person made a promise to you , either express or implied, to reward the claimant for the services provided;
There is a nexus between your services rendered or work performed and the promise; and
The deceased person failed to make the promised testamentary provision or to otherwise remunerate you .

What is a promise?

Promises are defined broadly in the Act. It includes statements or representations of fact or intention. The promise may be made either before or after the services were rendered or the work performed.

It is not necessary that the deceased person ever specified an amount or particular piece of property as the reward. In one case, the Court found that statements such as “I will see you right” and “I will look after you” were sufficient.

In determining whether or not a promise has been made, the Courts may place more emphasis on what you could reasonably have understood by the deceased’s statement than on what the deceased actually intended. However, promises made “in the heat of the moment” and fuelled by emotion may not amount to a promise in terms of the TPA.

Additional evidence of the promise, such as written statements or confirmation by others, will strengthen your claim that the promise was made. However, claims without supporting evidence can still succeed. The Courts also consider the circumstances in which the promise was said to have been made.

Did you perform services for the deceased?

Services can be a variety of things. Cases have recognised things like:

farm work and supervision;
housekeeping and domestic services;
financial advice and assistance with tax returns; or
companionship, affection and emotional support.

If the claimant is a family member, they must show that this kind of support was “something extra” over and above what could normally be expected of a relative.

For example, the Court has found that a stepson’s frequent calls and visits to his stepfather and “odd jobs” around the house were normal in the context of the relationship. By contrast, carrying out significant maintenance and improvements to a house and providing full-time care is usually considered to be beyond what is normally expected.

Were the services related to the promise?

You must show that the promises was made, at least in part, to reward the you for services or work, either performed in the past or expected in the future.

That connection may be expressly stated by the deceased or more commonly inferred from the circumstances. The greater the services or work, the more likely the court is to infer that the promise was made as a reward for the services or work.

All TPA cases are depend by their distinctive facts. We are happy to discuss with you the merits of a potential claim that you have, or that someone else has made against an estate.

For more details on how much you might receive in a successful claim, see this article.

This article is general in nature and is not a substitute for legal advice. You should talk to a lawyer about your specific situation. Reproduction is permitted with prior approval and credit being given back to the source.

One of an executor’s duties is to obtain probate. But what is probate and how does it work?

Probate is the process by which a Court officially recognises a deceased person’s will and the executors of that will.

Probate is required to ensure that:

The will being relied on is actually the last valid will created by the deceased;
Those applying for probate are the executors named in the will; and
The executors will carry out the deceased’s wishes in line with the law.

Once the High Court grants probate, the executors are legally authorised to deal with the deceased’s property.

Is probate required?

Probate is required for an executor to deal with any asset which exceeds $15,000. If the deceased person did not have any assets in excess of $15,000, the executors do not need to apply for probate. If you are not sure whether an estate is in that category, we are happy to discuss this with you.

If the person died without a will, they are referred to as dying “intestate”. A different process, called seeking letters of administration, is required in that situation.

Have you got the right will?

The first step is to locate the deceased’s last will. A will is often held by the deceased’s lawyer or another entity like the Public Trust.
If you suspect that there is a will but cannot locate it, it is possible to ‘advertise’ for a will. This alerts lawyers and similar entities who will then check their records to see if they hold the will.
There are various legal requirements for making a valid will, including that it be in writing, signed by the will-maker and signed by two or more witnesses.
There is a process by which the Court can validate a document that does not meet the legal requirements but nevertheless sets out the deceased’s testamentary intentions.
A probate application generally requires the original will. However, there are some exceptions to this if the original will has been lost or destroyed.
You must also be confident that the deceased had sufficient mental capacity to make the will.
If you think any of these situations may apply in your situation, please contact us so we can help you work through your options.

Making the application

Once you have the correct will, one or more of the executors named in that will can apply for probate.

You will need to make an affidavit (a statement sworn before a lawyer, registrar or JP) which:

Contains evidence that the will-maker has died (such as a death certificate or an affidavit from someone who went to the funeral);

Contains evidence of where the deceased was living just before they died; and

States that the will is the deceased’s last will.

You may need to file an affidavit that deals with the physical condition of the will, for example if the will has a mark, is crumpled, or has staple holes. The Court will be concerned that the document has been tampered with or previously had something else attached to it. The lawyer who looked after the will can swear an affidavit about the original condition of the will.

Other evidence may be required in some situations, such as where the will-maker had a visual impairment or a shaky signature.

Time frames

Once all the necessary documents have been filed, the High Court will review them. The Court aims to process a standard application within 6-8 weeks, but this may take longer if the Court is busy or the application is complex.

If the Court has any concerns about the application, it may ask for further information or an amended application. This will impact the time it takes to receive probate.

Receiving the grant of probate

Once you have obtained probate, you can proceed to gather in the estate’s assets and act out the will’s directions. For more information about the duties of an executor, see this article.

The grant of probate is important for starting off the timeframe for potential claimants to bring various claims against the estate, such as those under the Family Protection Act or the Property (Relationships) Act, testamentary promises claims and claims by creditors.

We have assisted many people obtain probate and to manage their responsibilities as executors and are happy to talk with you about how we could help you.

This article is general in nature and is not a substitute for legal advice. You should talk to a lawyer about your specific situation. Reproduction is permitted with prior approval and credit being given back to the source.

What happens if matters go to Court?

What happens if a family member does not provide for you in their will?

Who can make a claim?

What does it take for a claim to succeed?

Timeframe for a claim

How to make a claim

What duties apply to an executor?

What is an executor?

What are the responsibilities of an executor?

Do I have to be an executor?

What happens if I decide not to accept an appointment as executor?

What about my personal interest in the Estate?

If I do agree to be the executor, what happens next?

Is probate required?

Have you got the right will?

Making the application

Time frames

Receiving the grant of probate

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