Holland Beckett’s Estate Administration team has a wealth of experience and provides prompt, professional and sympathetic services in what can be a distressing time.
Our team can assist with everything from preparing estate planning documents, administering estates, professional trusteeship, advising where somebody passes without a Will, advice on contentious estates and defending or pursuing claims against an estate.
If you have an estate or Will query, please contact our team on estates@hobec.co.nz.
Our Experience Includes:
- Probate Applications
- Intestacy (where someone has passed away without a Will)
- Estate Administration (including transferring property, selling shares, repaying debts)
- The sale of estate assets (for example, commercial and residential property, a business, shares, occupation right agreements)
- Administering life interest or ongoing estates
- Testamentary Trusts
- Administering estate assets in other countries (including obtaining a reseal of probate)
- Māori Land Succession/Estates
- Executors’ duties and beneficiaries’ rights
- Claims against an estate
- Asset protection and planning updates following estate administration
Our Estate Administration Team
John Mackay
Tauranga
tel:+6479272751
mailto:john.mackay@hobec.co.nz
Luke Stewart
Tauranga
Whakatane
tel:+6475713835
mailto:luke.stewart@hobec.co.nz
Dean Thompson
Tauranga
tel:+6479280191
mailto:adele.cassidy@hobec.co.nz
Bill Holland
Tauranga
tel:+6475713855
mailto:bill.holland@hobec.co.nz
Rebecca Steens
Tauranga
tel:+6475700687
mailto:rebecca.steens@hobec.co.nz
Courtney Sinclair
Rotorua
Tauranga
http://tel+6475700681
mailto:courtney.sinclair@hobec.co.nz
Josh (Vasheesh) Bhageerutty
Tauranga
tel:+6472620453
mailto:josh.bhageerutty@hobec.co.nz
Jo-Anne Savage
Tauranga
tel:+6475778006
mailto:joanne.savage@hobec.co.nz
Kathy Julian-Ward
Rotorua
Whakatane
tel:+6473495561
mailto:kathy.julian@hobec.co.nz
Desiree Hepple
Whakatane
tel:+6479262282
mailto:desiree.hepple@hobec.co.nz
Heather Elmsly
Tauranga
tel:+6479280198
mailto:heather.elmsly@hobec.co.nz
Tereasa Peterson
Tauranga
tel:+6475713854
mailto:tereasa.peterson@hobec.co.nz
Ella Rose
Tauranga
tel:+6475778681
http://ella.rose@hobec.co.nz
Jenna Riches
Tauranga
tel:+6475723196
mailto:jenna.riches@hobec.co.nz
Related News & Resources
Estate Administration – with or without a Will
Making sure you have a Will in place is one of the most valuable actions you can take to support and guide your loved ones after you pass away. In your Will, you can decide who is in charge, and instruct exactly how your assets should be dealt with when you die. When you have a Will, the process to administer your estate is generally cheaper and quicker.
Without a Will, your assets are distributed to eligible family members according to the legal framework in the Administration Act 1969 (“Administration Act”), which may not work out how you think. The process is more complicated, takes longer, is generally more expensive and you have no say over who is in charge and who gets what.
What is the process if you die without a Will?
This is called \"dying intestate\". If you own assets over $15,000, then an application to the Court for Letters of Administration will be required.
A person with an interest in an estate (i.e a surviving partner or spouse, or children) can apply to administer an intestate estate. The right to make the application is in order of priority under the Administration Act 1969.
Some of the fundamental rules of the Administration Act 1969 are:
If you have a husband, wife, civil union or de facto partner, but no living parents or children, the spouse or partner will get all of your estate.
If you have a spouse or partner and also children, the spouse or partner will receive all of the personal chattels, the first $155,000 of your estate and 1/3rd of the remaining property. The other 2/3rds will go to your children.
If you have a spouse or partner and no children, and living parents, the spouse or partner will receive all the personal chattels, the first $155,000 of your estate and 2/3rds of your remaining property. The remaining 1/3rd will go to the surviving parents.
If there are children, but no husband or wife or civil union or de facto partner, your estate will go to your children.
Before an application is made, a search has to be conducted to confirm that no valid Will exists and a search to confirm the status of children entitled to inherit. Consents from interested family members who are not applying (e.g. other children entitled to inherit) also need to be obtained. The process could become even longer and more complicated if there are disagreements about who should apply. All of this slows down what could otherwise be a straightforward process.
How does this differ if you die with a Will?
A Will appoints executors who have the authority to apply to the Court for a Grant of Probate, and then deal with your assets in accordance with the wishes you set out in your Will. Unlike Letters of Administration, there is no need to obtain any searches or consent, and there are no rules around who you have to leave your estate to, although you have a “moral duty” to include children and spouses/partners in some way.
An application for Probate is generally cheaper and quicker. Most importantly, it puts you in control of where your estate goes.
In your Will you can:
Give away specific chattels i.e jewellery, watches, cars, artwork, heirlooms, pets (yes, these are chattels)
Specify gifts such as cash sums, shares
Decide who will receive the balance of your estate
Indicate burial wishes
Nominate a legal guardian for your children if they are minor
What happens in an estate administration?
Assuming you have over $15,000.00 in your sole name (remembering that joint assets pass to the other co-owner automatically), then the administrator must visit a lawyer who will help them apply for a grant of Probate (if you have a valid Will) or Letters of Administration (if you die intestate).
After the Court has approved the application, the administrator must find out what the assets and liabilities of your estate are and, if necessary, have assets valued and sold. Then they must pay any debts and taxes out of the estate funds.
The balance is then paid out to the beneficiaries in terms of either the Will or the Administration Act rules. Generally this does not occur until at least 6 months from the date of the grant. This is because the administrator can be personally liable for distributions made within 6 months, in the event there was a claim on your estate (this could be a debt or it could be a claim by a family member).
The estate could take much longer to distribute if there are a number of assets to be sold and debts to be worked through. If there is a claim on an estate, distribution could take several years.
This article was first published for First Mortgage Trust, October 2024 newsletter.
The Last Lost Will – How to find a missing Will?
We often get enquires for missing Wills.
(Of course, these are not Wills that we have drafted - those are safely stored in the Holland Beckett deeds safe.)
Locating a missing Will can be very stressful and locating the original requires a systematic search.
If you know someone had a Will, the search must commence - without it, obtaining a grant of Probate is much more complex.
If you have a copy of the will, you may be able to seek Probate of a lost Will.
If the will does not surface, could it be that the person never did a Will? If so, an advertisement (discussed below) must be advertised before a grant of Letters of Administration will be issued by the Court.
If a Will cannot be found, the estate may have to be distributed according to New Zealand’s intestacy laws.
How to find a missing Will:
Check personal records and safe places:
Search the deceased’s home and personal papers.
Look in safes, safety deposit boxes, and any hidden or secure places where important documents might be stored.
Family and friends:
Sometimes family members or close friends may have a copy of the Will or know where the Will might be.
Contact their lawyer:
Reach out to the lawyer who may have drafted the Will. Lawyers often (and in our view should) keep copies of their clients’ Wills.
High Court:
If the Will has been probated (or perhaps it was made and sealed via Court proceedings - more on this another day), the High Court might have a copy. Contact the High Court in the region where the deceased lived.
Law Society advertisement:
If you are unsure which lawyer might hold the Will, contact the New Zealand Law Society to place an advertisement in newsletters received by all lawyers.
You can contact the Law Society to advertise for a will here: NZLS | Advertise for a will (lawsociety.org.nz)
As a matter of good practice, a lawyer will not release details of a Will to anyone - that is confidential to the Will-maker during their lifetime and when they have died, it is up to the executors.
The above also illustrates the need to talk to your friends and family about your Will, and where to find it should they need to. This can alleviate a lot of stress during what will be a difficult time.
For any Estate and Will queries, get in touch with our specialist team at estates@hobec.co.nz.
The Golden Rule and its application in Gorringe v Pointon [2023] NZCA 42
If a Will is technically valid, the mere circumstances in which it is prepared makes the Will more vulnerable to challenge. The rule known as the “golden rule” is a measure of what might be considered best practice for lawyers in the preparation and execution of a Will. While the “golden rule” is not a rigid rule of law, it has been repeatedly emphasised by the Courts as a desirable approach for lawyers to take. The substance of the golden rule is that when a solicitor is instructed to prepare a Will for an elderly Will-maker, or for one who has been seriously ill or is making a significant change from a previous Will or conventional norms, the lawyer should arrange for a medical practitioner to prepare a medical certificate confirming whether they have the capacity and understanding needed to make a Will. The capacity certificate should be kept on file. A lawyer should also ensure they take clear file notes recording the Will-maker’s intentions and the explanation for any significant changes to the Will. Compliance with the “golden rule” does not make a Will invalid. Its purpose, as has been repeatedly emphasised by the Courts, is to assist in the avoidance or minimisation of disputes. This decision highlights the importance of clear file notes recording the Will-maker’s wishes and the need for a contemporaneous assessment of testamentary capacity. While capacity is not a determinative factor in the assessment of undue influence, the lack of acknowledgement or consideration of this issue will result in criticism from the Court. Where adequate records are not kept, the determination of a later Will challenge with respect to capacity and undue influence can be compromised. In particular, the Court may find that there is an information vacuum such that it is not possible to determine capacity or that the transaction was the result of the free exercise of an independent will of the Will-maker. Accordingly, adverse inferences may be drawn in relation to any significant change made by the Will-maker and the basis for said change. This was highlighted in a recent Court of Appeal case Gorringe v Pointon [2023] NZCA 42. This appeal concerned allegations of undue influence in relation to two Wills made by the deceased. In particular, the Court criticised the lack of adequate reasoning and evidence provided by the firm who prepared and executed these Wills. The legal executive who prepared and executed the Wills was significantly criticised for failing to follow the “golden rule”. The Court observed that: The lack of consideration given to capacity, given the Will-makers advanced age of 97 years, was surprising and remiss. The apparent lack or adequate oversight or supervision from a qualified lawyer was regrettable. The interactions with the Will-maker were notably slim as evidenced by time recording. There was insufficient probing of the Will-maker’s intentions and scant file noting of the instructions and the execution process. When cross-examined during hearing, Ms Hopkins sought to extrapolate from the circumstances to proffer an opinion on why the Will-maker changed her Will. However, there was no note of this information in the evidence which undermined its credibility. In this case, the failure to comply with the \"golden rule” greatly increased the difficulties to which this dispute had given rise and aggravated the depths of mistrust the deceased’s family had. Overall, preparing a Will can be difficult and constrained by the client’s expectation that any instruction should be dealt with efficiently and at low cost. However, it is important that careful consideration is given to all potential beneficiaries and ensuring that no-one attempts to unduly influence the views of the Will-maker. If these points are addressed, along with any issue of capacity, the Will should stand up to scrutiny in the event of a dispute. Talk to our Estate Planning Team about Wills.
Last minute Wills
Ideally, a Will is prepared with a lawyer after careful consideration. Someone facing imminent death or decline may want to urgently prepare a new Will or update their current Will. These Wills are often referred to as deathbed Wills, last minute Wills or bedside Wills. These Wills are valid if executed properly. Technical RequirementsFor a Will to be valid it must meet the requirements in s11 of the Wills Act 2007 (“the Act”): The Will must be in writing; The Will-maker must sign the Will (or direct another person to sign on their behalf in their presence) in the presence of two independent adult witnesses; The witnesses must then sign the Will confirming they were present when the Will-maker signed the Will. The Will-maker must have also intended to make a Will. It is relatively common for last minute Will-makers to use family members to witness their Will, often because they are immediately available at the time. However, this can invalidate the Will or a gift within the Will if a witness is a beneficiary or the partner of a beneficiary. If a Will does not meet the validity requirements, the Court can declare a Will valid under s14 of the Act. However, this can be an expensive and time consuming process, particularly if there is a dispute amongst beneficiaries. Grounds for ChallengeIf the Will is technically valid, the mere circumstances in which it is prepared makes the Will more vulnerable to challenge. This includes if the terms of the Will differ considerably from the terms of a previous Will or, where there is no previous Will, from the laws of intestacy. The more significant the changes from a previous Will or conventional norms, then the greater likelihood that consideration must be given to the issue of capacity or undue influence. For example, leaving an estate to an acquaintance or neighbour rather than the Will-maker’s children would be considered a significant change. Challenges on the Basis of Incapacity A Will-maker must have testamentary capacity at the time of making the Will. Illness and strong medications can impact a person\'s ability to understand the nature and effect of their Will. If there are any doubts as to capacity, this makes the Will vulnerable to challenge on the basis of incapacity. The test for capacity was established in Banks v Goodfellow. At the time of signing the Will, the Will maker must: Understand they are making a Will and the effect of doing so; Understand the extent of their property being dealt with under the Will; and Appreciate moral claims which they ought to give effect to. If a person is making a last minute Will, a doctor’s certificate confirming the Will-maker’s capacity and a lawyer’s file note will minimise the risk of a challenge. Challenges on the Basis of Undue InfluenceWhere a Will makes a drastic departure from previous Wills or the rules of intestacy prior to death, questions of undue influence arise. This refers to a situation where someone has coerced or applied pressure to get a Will-maker to sign a Will. Undue influence affects whether a Will is valid or not. A person alleging undue influence must establish that the alleged influence led to the Will and that the terms of the Will were not the result of the Will-maker’s own free judgment. Preparing your WillIdeally, you should prepare your Will when you are fit and healthy. If you or your loved one are making a last minute Will, we strongly recommend engaging a lawyer to ensure the Will is valid and practical. This will provide certainty for you and your loved ones.
How can I challenge a Will?
If you feel like you haven’t been properly provided for by a close family member or friend, you are able to apply to the Court for this to be changed. This can be done in a number of ways, but the two main laws are the Family Protection Act 1955 (FPA) and the Law Reform (Testamentary Promises) Act 1949 (TPA).
Who is eligible to make a claim?
Under the FPA, spouses, civil union partners and de facto partners of the deceased are all eligible to claim. Children, grandchildren and step children who were being wholly or partly supported are also able to claim. Parents of the deceased are only able to claim in limited circumstances.
Under the TPA, any person who has been promised provision under the will can make a claim. However, claims usually come from relations not provided for under the FPA, or close family friends.
Is there a time limit on making a claim?
Under both the FPA and the TPA, you have 12 months to lodge a claim. However, we recommend that you file a claim as soon as possible to make sure that all of the Estate assets are available.
How can I claim under the FPA?
The FPA gives specified family members the right to apply for provision out of a family member’s estate. The purpose is to ensure that family members receive their fair share of an estate and are adequately provided for by the deceased. This is because the FPA creates a moral duty, for example from a parent to a child.
If you make a claim, the Court will consider whether adequate and proper provision has been made for your maintenance and support. This means the Court will consider factors such as the relationship between you and the deceased, the size of the estate, your financial need, and any ethical elements such as your right to feel a sense of belonging to the family.. A claimant in need (whether financial or otherwise) will have a stronger claim.
How can I claim under the TPA?
Under this Act you will need to prove that the deceased made you an “express” or “implied” promise of reward for the work you did. If this is proven, then the estate will have an obligation to make a reasonable award to you.
To succeed in a claim under the TPA, a person must show that:
Services or work were rendered by you to the deceased in the deceased’s lifetime;
There was a promise from the deceased to you in reward for the services;
There is a connection between the services rendered and the promise; and
The deceased failed to make the promised testamentary provision or otherwise remunerate you.
The term “services” essentially means work. It has been given a broad definition by the Courts, and includes physical work and even emotional support where it goes above and beyond what would usually be expected.
A “promise” means any statement or representation of fact or intention. The promise can be expressly made, or it can be implied. Unfortunately, these sorts of claims can be difficult to prove. If there is information to support a promise being made (ie. some evidence in writing), or other witnesses who heard the promise being made, this will help with proving the claim.
The Law Commission has recently reviewed succession law, and has recommended a new Inheritance Act to replace these Acts. This reform is expected to take several years, so it will be some time before we see any changes.
The A to Z of Estate Administration
Dealing with a loved one’s passing is a difficult time. At Holland Beckett, we aim to make the estate administration process as simple as possible. In this article we explain, in plain English some of the common legal jargon that you might encounter in the estate’s administration process.
Affidavit: A sworn statement for the purpose of being filed in Court.
Bequest: A gift made by a person in their Will.
Beneficiary/Cestui que trust: A person with an interest/entitlement under a Trust or Will.
Capacity: Legal competence to enter into a legally enforceable arrangement. Those who are under 18 do not have legal capacity. There are some exceptions, for example an attorney under the Protection of Personal and Property Rights Act 1988 must be at least 20 years of age.
Codicil: A document which adds to or makes changes to a Will.
Common form: The standard form of application for probate which is not contested or opposed in any way.
Devise: A gift of land in a Will.
Disclaim/Renounce: To relinquish/refuse a legal claim to something. For example, an executor may renounce as executor which means they step down from their role and a beneficiary may disclaim/reject a gift made to them under a Will.
Estate: Everything that a person owns in their own name at the date of their death.
Execution: The act of signing a document in a way required by law. This also includes requirements for the document to be witnessed.
Executor: An executor is the person who is appointed by the Will-maker to administer the estate.
Issue: All of a person’s descendants (children, grandchildren etc).
Intestate: When a person dies without a Will.
Legacy: A gift in a Will, usually money.
Letters of Administration: An application for administration of an estate where a person has died without a Will. Alternatively, there can be an application for letters of administration where there is a Will but the executor named in the Will has died or for whatever reason, will not apply for probate.
Life interest: A grant of the right to use all or part of the estate for the remainder of that person’s lifetime. For example, a Will-maker might leave a beneficiary the right to live in their property for the rest of their lives.
Probate: The application to prove or verify a person’s Will and obtain Court authority to act as executor.
Residuary beneficiary: A person who will receive a benefit from the remainder of an estate after specific gifts, debts and expenses have been paid.
Residuary estate: What remains of an estate after specific gifts, debts and expenses have been provided for.
Solemn form: Where probate of a Will is opposed or there is doubt whether probate should be granted. It then involves a hearing before a Judge.
Testamentary: Arising under a Will. For example, a testamentary trust is a trust arising under a Will.
Testamentary capacity: Competence to make a Will. A Will-maker must be of sound mind.
Testator/Testatrix: The male and female words for a Will-maker. It is now more common to simply refer to the person as the Will-maker.
Whilst some of the legal jargon is part of the process, we make sure our clients understand the steps in the estate administration process in a plain and simple way, to ensure they understand what is required from them at such a difficult time.
If you would like advice regarding an estate or estate planning our specialist team is here to help.
I am the executor named in a Will, now what?
If you have been appointed as an executor of a Will, then when that person dies you are responsible for administering their estate and carrying out their wishes according to the Will.
You may not have known you were an executor (surprise!). Or, you may have been fully aware of this and had discussions with the Will-maker about what they wanted to happen.
An executor’s role can be very straightforward, or it can be fraught with conflict. Read on to find out how to deal with all potential eventualities .
Locating the Will and understanding the terms
You should locate the original Will and ensure you understand its terms, for example, what happens if a beneficiary has passed away or if the beneficiaries are still minors. The estate’s lawyer can assist with any interpretation issues.
It is very important that you keep the Will in a safe place and do not alter or mark it in any way.
Assisting with funeral arrangements
As executor you have the authority to make decisions about the funeral and what to do with the body (ie. cremation or burial). Sometimes there will be funeral instructions in the Will, a pre-arranged funeral plan or the family may be aware of funeral wishes. If you are an independent executor, you may leave the decision making to family. The Court has determined that where there is no agreement regarding where a body is to be buried then the executor’s rights and duty to dispose of the body apply, and the executor will make the ultimate decision.
Identifying assets and liabilities of the estate
You must identify the assets and liabilities of the estate such as bank accounts, property, insurance, shares, income streams and debt.
If the estate has an asset worth more than $15,000, then you must engage an estate lawyer and apply for probate. Probate gives you, as executor, authority to deal with the assets of the estate.
Applying for probate
The Court ensures that an estate is not left unadministered where an executor refuses or neglects to carry out their duties. If you fail to apply for probate within three months from the death of the Will-maker, any other executor, or any other person interested in the estate, can make an application to Court to be appointed as your replacement. The Court will give you the opportunity to respond, or to formally step down. If the Court does not hear from you, then an alternative executor will be appointed by Court order.
The Court has the power to remove you and appoint a replacement. For example, there may be conflict issues between you and another executor, or a family member or other interested person might take issue with your appointment. This will involve a Court hearing if you wish to defend your position, or you do not reach an agreement to step down. Often the appointment of an independent person can resolve conflict issues.
Securing and insuring property
Any assets should be secured so far as possible. For example, if there is a property, you should check who has access to keys, that the insurance is up to date and that any expenses (such as rates, water and power) are up to date.
Notifying Relevant Parties
You or the estate’s lawyer should notify relevant providers of the passing, such as the estate’s bank, insurer, WINZ (if a benefit was being received), IRD and any other asset providers or debtors.
You must also notify the beneficiaries of the Will and make relevant disclosures to them. Your estate’s lawyer can assist with this.
Risks facing executors
Potential arguments can arise between family members who may be unhappy with the terms of the Will. The Court can become involved where an interested party makes a claim on the estate. As executor you are named as a party to the claim and are required to participate in the Court process. You are under a duty to take account the interests of potential claimants on an estate and therefore can be held personally liable to the beneficiaries or potential claimants for distributions made within six months from the grant of probate. Due to this potential liability, it is strongly advised that estate’s assets are generally not distributed until the expiry of six months. In practice, estates can take several years to distribute.
Before making distributions, you should seek advice from your estate’s lawyer to ensure you are not exposing yourself to undue risk. You also should take advice as to how to manage any conflict between the beneficiaries and how to deal with potential claims. The Court of Appeal has confirmed that an executor must be even-handed when dealing with beneficiaries/claimants and must not actively or dishonestly conceal relevant information about the estate.
As executor, you are required to act with neutrality and independence, while doing your best to follow the wishes of the Will-maker. You can attempt to reach agreement with all beneficiaries as to how assets are to be distributed, but if there is no agreement it will be for a Court to decide.
Although uncommon, you may also be required to act on the interests of minor children or mentally disabled persons who are otherwise entitled to make a claim.
Where the Will leaves a life interest, you as executor become the trustee for that life interest, and your duties and obligations continue. These extend to duties under the Trusts Act 2019.
Talk to our estate planning team about your options and to obtain the right advice for you.
Why do you need a Will?
Your Will contains your instructions about what you want done with your property when you die and how you want those that depend on you (your spouse, de facto partner, children, etc) to be looked after.
It is important to consider what happens if there is an unexpected change in circumstances, if you become seriously ill or pass away. If you have not planned properly for the future, decisions about your affairs will be made by someone else - and those decisions may not reflect your wishes.
As far as you and your family are concerned, it could be the most important piece of paper you ever sign.
Why do you need a Will?
Even if you don\'t own major assets, you can quite quickly build up possessions that have some sort of monetary or sentimental value to you. Having a Will allows you to decide what will happen to your belongings and give some thought to sentimental items. Without a Will, your assets flow according to the legal framework in the Administration Act 1969, and for many people, what the law says might be quite different from what you want to happen.
A Will might relieve financial and emotional strain on your family after your death and help minimise the likelihood of disputes about how your estate is to be divided up.
A Will does not necessarily prevent any disputes, however a Will that is well considered and with clear reasons, should give you more control over the destination of your property.
Legal advice will ensure that your Will is validly executed and achieves your succession goals. It can also help you to minimise the chances of your Will being challenged.
What should your Will include?
The following matters should be covered off in your Will:
Your Will should name at least one executor, ideally two, preferably who live in New Zealand. They are:
responsible for seeing that your wishes, as expressed in your Will, are carried out; and
who will administer your estate until it is all distributed.
Your Will should provide for payment of your liabilities.
It should make adequate provision for your partner and children.
It should cover off who you would want to inherit your property and possessions, and any specific gifts for family and friends.
You might consider naming preferred guardians of your children.
You can also set out any specific funeral arrangements, although those organising your funeral are not legally bound to follow these instructions.
You can give directions as to how a business you own should be dealt with when you die.
Your Will can also include a bequest or a gift to charity.
You can also deal with any interests in Māori land in your Will as long as the people receiving the interest are entitled to do so under the Te Ture Whenua Māori Act.
As your circumstances change you should consider updating your Will. If you get married or enter a civil union your will is automatically revoked. Read more on wills and relationship changes here.
If you have a Will then you’re already one step ahead. But is your Will up to date? When was the last time you reviewed the terms of your Will?
A Will can be challenged
The law recognises that if you have a partner, child and grandchildren they should be acknowledged in your Will when you pass away. If your Will does not adequately provide for your partner, children or grandchildren (and in some circumstances your step-children) then there may be arguments after you die and a Court could be asked to decide what should happen.
Your Will can be invalid if it does not contain certain formalities, or was prepared when you did not have capacity or you were forced into signing it.
Therefore, it is important not only to have a Will, but to ensure that it is well prepared to best give effect to what you want and avoid arguments later on.
Holland Beckett can assist with preparing your Will or reviewing an existing one. If you have any queries please reach out to a member of our team.
We provide an obligation free online tool to provide you with further information based on your specific circumstances.
Click here to get started
Testamentary Guardians
A testamentary guardian is appointed via a Will or Deed to “step into your shoes” as a parent when you die. A testamentary guardian is not appointed to care for the child. That is something quite different and cannot be provided for in a Will.
When should you appoint a testamentary guardian and what do they do?
A testamentary guardian is appointed alongside the surviving parent (usually) for input into “the big important decisions” about a child’s upbringing like education (where do they go to school), health (major medical decisions not day to day bumps and sniffles), religion, residence (which country or region do they live in, not a specific house or street), and permission to marry under the age of 18. These rights and responsibilities end when the child attains the age of 18 years or earlier if the child marries, enters a civil union, or lives with another person as a de facto partner.
Why do it?
It is worth considering if you have separated from your child’s other parent to ensure your views about upbringing are represented in the event of your death or if you are worried your family will be “cut off” from the child when you die.
If you are still happily in a relationship it is probably not necessary to appoint a testamentary guardian as it is likely you can trust your spouse/partner to make good guardianship decisions for your children if you die. If you are worried about what happens if you both die together then you could each say in your wills that “if we both die together, we appoint X as a guardian.”
If you are the sole guardian of your child (the other parent has died already) then you should definitely consider appointing a testamentary guardian.
So, who does care for the kids if we die?
The surviving parent would usually remain carer for the child unless unwilling or unable or unsuitable. If you have both died it is assumed that the family will rally around the child to take them in. Whomever they live with (which may be the testamentary guardian if appointed or may not be – there is no default assumption) may then file an application for a parenting order providing them day to day care together with guardianship orders if necessary.
A testamentary guardian could apply for a parenting order if they wanted to contest day-to-day care or seek contact rights to the child and as they are already a guardian they would not need the leave of the Court to do so.
Before an application for a parenting order can be filed, the guardian will normally have to provide evidence that he or she has sought to resolve the matter with the other guardian/s by family dispute resolution unless the circumstances are urgent.
The legal test to determine a child’s care arrangements is “what is in the welfare and best interests of the child” so it depends on all the circumstances at the time.
Things to remember:
Only one testamentary guardian can be appointed.
The consent of the person to be appointed as a testamentary guardian is not required,
A person appointed as a testamentary guardian cannot decline the appointment. As a guardian of the child, the appointee could apply to the court for an order for his or her own removal. Another guardian could also apply for removal of the testamentary guardian.
A testamentary guardian has the same rights and responsibilities as the living parent/guardian but only upon the death of the appointor. They have no say in the upbringing of the child prior to that parent’s death.
By appointing a testamentary guardian you are not appointing somebody to care for your child if you die.
Legal Capacity
When a person makes a decision in relation to their personal or property rights, they are presumed to have capacity unless there are good reasons to suggest otherwise. A person’s decision does not have to be wise, so long as they understand the nature and consequences of that decision. But, what do legal practitioners have to do when they spot “red flags” which raise questions regarding a person’s capacity to enter into a legal document? Spotting the difference: medical and legal capacityIn medical terms, capacity refers to cognitive ability. Medical conditions which may affect a person’s capacity include dementia, brain injury, stroke, schizophrenia, acute depression, alcohol or substance addiction as well as learning disabilities. Enduring Powers of Attorney (“EPOA”)To enter into an EPOA a person must have capacity and be able to: understand the decision’s nature and purpose and appreciate its importance for them; retain the relevant and essential information long enough to make the decision; use or weigh relevant information, considering any consequences of their decision and other possible options, including the option to not make the decision; and communicate their decision, verbally, in writing or some other way. A person’s capacity may come and go. The length of time that a person must retain information relevant to the decision depends on the type of decision being made. While an unwise decision may be considered a “red flag”, the assessment of capacity must take into account the process used by the person to arrive at a decision, rather than looking at the substance of the decision made. An assessment of capacity should also not set the level of understanding too high. It is not necessary for the person to understand every part of the decision. However, the person should be able to explain the benefits and risks associated with each option available to them and state why they have made the decision that they have. WillFor a Will to be valid the Will-maker must have testamentary capacity, which is the ability to understand: that they are making a Will and its effect; the extent of the property in their estate; the nature and extent of the potential claims upon the Will-maker, including those who the Will-maker included and those who are excluded from their Wills. Again, there is a presumption of capacity. If there is evidence that the Will-maker lacked capacity, those seeking probate must satisfy the Court that the Will-maker had testamentary capacity on the balance of probabilities. What practitioners need to do if they suspect a person lacks capacity If a legal practitioner sees “red flags” leading them to question whether a person has capacity to enter into a legal document, a medical assessment of capacity should be sought. Legal practitioners should identify why a person’s capacity is being questioned and then a clinician can assess the person’s capacity through an interview process. A person cannot be compelled to undergo a capacity assessment (other than by a Court order). In the case of an outright refusal, a legal practitioner should consider whether the creation of the legal document is in the best interests of the client. Good file notes are a must, all “red flags”, advice and medical assessments should be carefully documented. Particularly where family members have serious concerns or where a decision has serious consequences or risks. Most importantly, file notes should focus on a person’s ability to understand, retain, reason and communicate regarding the decision. It is important to understand that a person may be impaired, yet nonetheless capable of creating a legal document.
Where there’s a Will there’s a way
People making a Will normally think that they can do what they want with their own property. Since this is true for people during their lifetime, many are surprised to learn that their Wills can be challenged after their death if they do not meet certain requirements. This article talks about the main ways that Wills are challenged in the Courts.
Family Protection Act
One of the most common kinds of challenges to a Will is a claim under the Family Protection Act. This 1955 piece of legislation allows certain family members (particularly children) to make a claim for “maintenance”. A Court deciding this kind of claim will ask whether the person writing the Will has properly considered their moral duty to look after their family and may adjust legacies if the Court considers the Will to be unfair. For small estates, maintenance is normally ordered for children or other dependents who have special needs. This can be a medical condition or financial circumstances that mean they need a greater share of assistance than other children. In larger estates (particularly those over $500,000) the Courts may order maintenance in favour of any child who did not receive a reasonable share of the estate. Awards of between 10% and 20% of an estate are often made in favour of a Will-maker’s biological and adopted children.
This does not mean that it is impossible to make a Will that does not provide for all children. Sometimes a child will have acted in such a bad way toward their parent that they are “disentitled” from receiving any gift, however, the standard for this is very high and needs to be properly documented. Likewise, while there is no presumption that the Will-maker will share assets amongst children equally, the larger the disparity, the clearer the justification for it needs to be. It is very important when making a Will to consider how any unequal distributions are justified.
Testamentary Promises Act
A second kind of claim is found in the Testamentary Promises Act. That legislation allows potential beneficiaries to sue the estate for promises about gifts that would be left to them in a Will. These claims are significant because the applicant does not need to establish that there was a formal contract. So long as the promise was made in return for some value (even for past good works or familial affection) they may be able to receive what they say was promised to them.
Talking about your Will with family can be difficult and embarrassing especially when children are being treated differently. However, the best way to prevent a Testamentary Promises Act claim is to be clear with the family as to what they are likely to receive under the Will and to explain the reasons for these decisions. When circumstances change, sometimes promises that have been made will also need to change and this should be discussed openly.
Undue Influence
A final kind of claim that can be made against a Will is based on a direct attack on the Will itself. Where the person writing a Will has been influenced by a family member (such as a child who is involved in their care) this can lead to a Will being disregarded. Like cases where the Will-maker did not have the legal capacity to write a Will, cases where a person has been unfairly influenced by a person can mean that a Court treats a Will as not representing the Will-maker’s intentions. The Court may look to earlier Wills or make adjustments to ensure that the Will-maker’s true intentions are recognised. Where a Will is made by a person in poor health or with the assistance of a very close family member, the chances of this kind of claim increase. It is very important in these circumstances that the Will-making process is property documented and a lawyer should be engaged to give independent advice to the Will-maker. This kind of claim is unique because it is about protecting the Will-maker and reflecting their true intention. However, it can also be open to abuse.
Conclusion
Making a Will is a very important decision and Will-makers should be able to expect that their wishes are carried out. For this reason, it is important that you obtain good legal advice when writing your Will. It is also a good opportunity to talk with family about your wishes and expectations for once you have passed on, so that you know your desires will be respected.
Holland Beckett Law’s team are qualified to give advice on ensuring that your Will is safe and can also assist you with resources and support to allow you to have these difficult conversation with family. Our team of experienced lawyers are more than happy to discuss any of these matters with you further.
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