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When a will is worthless

14:00 AEST Mon Jun 14 2010
Is your will worthless? (Getty)
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Could you lose your inheritance to your stepmother? North & South editor-at-large Donna Chisholm investigates a law pitting family members against one another when a loved one dies.

Family lawyers say thousands of New Zealanders are being caught out by a little-known law change which is rendering some wills worthless.

Most disadvantaged are the children of first marriages whose parents later remarry and have a second family.

In the July issue of North & South magazine, legal experts explain how bereaved partners — even if their relationship is quite short-lived — have the option to take 50 percent of their late spouse’s estate, which may overturn the wishes expressed in the will.

Disinherited children have to take expensive court action for what they see as their rightful share.

"They're not totally powerless," says Auckland lawyer Bill Patterson, one of the country’s foremost authorities on family protection issues, "but they have an uphill struggle the way the dice are loaded at the moment."

The law change came in at the same time as that giving equal property rights to de facto partners but received almost no publicity and one lawyer told the magazine some families are finding the amendment incomprehensible and distressing.

The family lawyers say current legislation has not kept up with the changing dynamics of families, and the multiple partnerships people now enter into over their lifetime, and it's almost impossible to know which way judges will jump when cases come to court.

About 550 families a year are ending up in court to fight the cases which chief family court judge Peter Boshier describes as some of the most emotional and fraught he's ever seen.

North & South also examines changes to the Wills Act which are easing the way for informal wills to be validated, and discusses the tragic case of a young widow forced into court action with her in-laws over her late husband's will.

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User comments
If people willingly enter into a de facto relationship without the protection of marriage, then they should be able to get their act together and have an agreement drawn up outlining the division of assets etc... (for the protection of any children they may have or already have), should they separate. By stating in law that a de facto partner is entitled to 50% of their partner's estate is a cop out by consenting adults and the nanny state, creating grief on top of grief for children when a parent dies. Thanks for bringing this little known change in law to my attention.
there is no real understanding as to why someone in a family who does nothing for the family member and expects to get as much or more than the one who does everything.Money is the real problem once a family member dies and brings out the worst in some. When a person makes a will and should do with a lawyer it should be binding and set in concrete.
I am married to an older man whose first wife and 2 children together as a "pack" took him to the cleaners as they say leaving him with very little at a later stage in life..As far as my husband is concerned "they took their inheritance early"..there certainly aren't any allowances for them and why should there be...they didn't care about him one bit.
I do not understand the mentality of contesting a will. Situations and relationships change throughout ones life. It is no longer the case where the parents work so they can leave some form of legacy. Estates can be diminished especially where the person requires care prior to death. In these days anything left in a will should be, as bobrsnr says, a bonus. Children are sometimes better off than their parents (depending on their age of course). A will should be honoured. It is afterall the wishes of the recently deceased. Anything gifted (legally) is no longer part of the estate. These items should not be contested either because the person believes they should have it! Have we become such a materialistic generation? It is in our best interests to ensure our wills are kept up to date, especially as family situations change.
My parents had seven children, including an intellectually disabled one. When Dad died he left money for this child. When Mum died her second husband had spent most of what she had, but she left the house which she had paid for to him (there was nothing else financially). He also got all the personal things. He found out he was dying and immediately changed his will to leave the house (paid for by Mum) to his family. When he died 10 days later his family couldn't afford to bury him, so we agreed to pay on the condition we got Mum's personal things back. We have been through lots of crap over the years with wills of various relations, (the best was an Aunt who left varying amounts to everyone) but we all still like each other and get on and take care of our sister. My stepfathers family all hate each other, and his daughter spent her inheritance on plastic surgery - she is still a dog, so it just shows, you can't help some people.
It is one thing if the parent has more kids with the new partner, obviously if they are younger than 18 then they do need some sort of protection, having said that all the kids could be under 18 then they all need something which should cover all the families. However I object to someone gold digging. If people want someone to have it, it should be put in a will. Maybe the ird should follow this up, if you are a taxpayer you should have a will filed with them or a notation on where the will is, eg solicitor sends in a confirmation they have a new will for you. that way if your circumstances change eg kids and stuff they can say have you changed your will? and it also gives them the notification for the death of someone. It would mean people couldn't avoid it and make this new law hopefully unneccesary
As I understand it if a person dies intestate (i.e. without a will) there are specific rules defining who gets what and this distribution is determined by the state. However, when a person dies with a will it should be respected even if it appears to disinherit certain members of that person's family. Family members should look upon inheritance legacies as a bonus rather than a right. If I want to disinherit a wayward child or a family member who has failed me I should be allowed to do so without the need to explain my reasons. Likewise, if I see that my children have very different levels of financial success and I decide to leave the less well off members more than those who already have sufficient for their needs then again that should be my right. My will should be defining what I want to happen to the assets that I have accumulated throughout my lifetime and it should not be either the concern of those who were expecting a legacy or the courts.
my family was torn apart because people couldnt except when my poppa died what was given to them i think its awful when familys are destroyed cause of money money comes and goes but family is forever they r the people who love you no matter what money is just a object used to buy stuff what can compare to unconditional love