4. Property, Estate And Probate

A. Wills

I. Requirement For Valid Will

The Wills Act 2007 sets out formalities required in the execution of valid wills. Testamentary dispositions to an attesting witness, or spouse of the witness, will be void. All forms of property may be disposed of by will.

Ii. Revocation And Alteration Of Wills

Wills are automatically revoked in the event of marriage or civil union, unless the will has been expressly made in contemplation of marriage or civil union. A will made in contemplation of marriage or civil union can be expressed either to be conditional upon the marriage/civil union taking place, or not, as the case may be.

Iii. Intestacy Rules

The intestacy rules under the Administration Act 1969 give the court the discretion as to the person(s) to whom letters of administration are granted.

If an individual dies intestate leaving a spouse (including a de-facto partner) but no issue and no parents, the surviving spouse inherits the estate.

If the individual leaves a surviving spouse and issue, the spouse receives personal chattels and one-third of the residuary estate, with the remainder of the residuary estate going to the issue.

If the deceased leaves a surviving spouse, no issue, but one or both parents, then personal effects and two-thirds of the residuary estate pass to that spouse, with the remaining one-third passing to any surviving parents.

If the deceased leaves no surviving spouse but has issue, the issue shall inherit the entire estate. Similarly, if there is no surviving spouse or issue, but one or both parents, then the parents receive the entire estate.

There are further provisions in the Act to deal with more remote vesting of the estate for relatives. More than one spouse/de-facto spouse may be entitled to part of an individual’s estate on intestacy.

B. Dependants’ Relief

The court may make orders concerning a deceased estate for the benefit of dependants that have not been, in the court’s opinion, properly provided for. The parties entitled to make claims are set out in the Family Protection Act 1955.

Individuals may also make claims against an estate pursuant to the Law Reform (Testamentary Promises) Act 1949. This statute was enacted to allow for the enforcement of promises to make provision for another individual in the will of the promisor/testator, for services rendered to the deceased during the deceased’s lifetime by the individual making the claim.

C. Spousal Rights On Death

The powers under the Family Protection Act 1955 do not extend to assets that may have been vested in an intervivos trust by the deceased prior to death.

Until recently, the spouse of a deceased individual was not entitled to make a matrimonial property claim in respect of the estate of the deceased, with that survivor’s recourse primarily arising under the Family Protection Act 1955. The law was substantially amended in 2002, when the Matrimonial Property Act 1976 was re-enacted as the Property (Relationships) Act 1976 (PRA). In addition to extending matrimonial property rights to de facto relationships (including same-sex relationships), the Act was amended to permit relationship property claims to be made against deceased estates. The foundation principle of PRA is a concept of 50/50 sharing between spouses (including de-facto partners) unless there are ‘extraordinary circumstances’. This principle extends to the power for a surviving spouse to make a relationship property claim against the estate of a deceased spouse.

This Act does provide spouses with some limited capacity to make claims against assets vested in an inter vivos trust by the other spouse, but the provisions conferring those rights are complex and, as a result of recent amendments to the statute, are awaiting judicial clarification.

D. Powers Of Attorney

New Zealand law provides both for ordinary powers of attorney in respect of property, which are revoked in the event of the mental incapacity of the donor of the power, and enduring powers of attorney, which either continue in effect in the event of the donor’s mental incapacity, or come into effect only in the event of the donor’s incapacity. These enduring powers of attorney are provided for under Protection of Personal and Property Rights Act 1988. This Act provides for the creation of powers of attorney, either in relation to personal care and welfare, or in relation to property.


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