27 October, 2022 | Carolyn Ranson
The death of a parent is always a difficult time, even if it is expected. This is doubly so where you parent has re-partnered, and their partner is still living. In most situations, a child or children in this situation only has a claim against the estate of their own parent, not a stepparent. And, children have a limited time (usually 12 months after grant of probate of the Will) to bring such a claim. If they take comfort that they are named in their stepparent’s Will, there may be nothing to stop the step-parent changing it after their parent has died.
It is therefore important to obtain comprehensive legal advice about your rights and the timing involved so that you do not miss out.
Bob and Cath have two children, Sam and Pam. Bob and Cath divorce after 15 years of marriage and Bob starts living with Shirley. Shirley has two children of her own, Ivy and Marigold.
Bob and Shirley mainly keep their assets separate but make ‘mirror’ or reciprocal Wills leaving everything to each other. Their Wills state that the survivor of them will leave their estate equally between Ivy, Marigold, Sam and Pam. This is a very common way to set up a Will. However, the Wills are not ‘mutual’ Wills which would bind each other.
After 22 years with Shirley, Bob dies. Pam asks for a copy of her father’s Will and Shirley provides her with it. Pam is satisfied to see that her Dad’s Will provides that after Shirley’s death the joint estate goes to all 4 children in equal shares. Pam assumes that Shirley’s Will is the same.
Pam and Sam understand that they could claim against their father’s estate (under the Family Protection Act) but are content to wait until Shirley dies to receive their ‘inheritance’.
After 12 months (from grant of probate of Bob’s Will) the ability to bring the claim lapsed.
Shirley dies 5 years later. Pam and Sam wait to hear from Shirley’s lawyer. When they hear nothing, they contact Ivy who says they are not in Shirley’s Will. Shirley had changed her Will 2 years before her death leaving everything to Ivy and Marigold.
Pam and Sam have no claim against Shirley’s estate (because she is not their parent) even though it is made up of assets from their father’s estate. It is now too late to claim against Bob’s estate so Ivy and Marigold get everything and Sam and Pam get nothing.
Earl and Merle have three children, Tim, Tom and Tammy. Earl dies and Merle remarries Sid. Sid has one son Fred. Sid and Merle are together for 15 years until Merle’s death.
When Tim, Tom and Tammy ask about their ‘inheritance’, Merle and Sid’s lawyer told them Merle did not have any assets in her estate as they had all gone to Sid ‘by survivorship’.
They find out that Sid and Merle had joint bank accounts and owned their family home as ‘joint tenants’. Merle owned nothing in her own name so her Will was irrelevant. Tim, Tom and Tammy were shocked to hear this as they understand that Sid could leave all his assets to Fred and leave nothing to them.
Tim, Tom and Tammy went to see their own lawyer (Tilly Travers) to get advice on what they could do. Tilly explained that they could request that the executor of their father’s Will make an application to the Court under the Property (Relationships) Act 1976 for half of the joint assets of Sid and Merle to be ‘bought back’ into Merle’s estate (which was her entitlement under that Act as there was no agreement in place which contracted out of that Act). This meant they could then bring a Family Protection Act claim against those assets.
An experienced estates litigator can advise you on the best way to protect your estate from a claim and on defending a claim against an estate, where you are the main beneficiary or the executor. They can also advise and assist on bringing a claim against an estate.
Have you been left out of a parent’s will or has their estate been left with no assets? Time is of the essence in making any claims in this situation, contact Suzanne Sumner, Personal Assistant to Estate Litigation expert Carolyn Ranson today to set up a confidential appointment to discuss your options. Phone 09 837 6840 or email suzanne.sumner@smithpartners.co.nz
Have you been left out of a parent’s will or has their estate been left with no assets?
Time is of the essence in making any claims in this situation, contact Carolyn Ranson to set up a confidential appointment to discuss your options today.
12 April, 2012 | Carolyn Ranson
