Ambiguous Wills exacerbate pain after death

Farah Khan – 

A majority of us consider that writing a Will is an end-of-life obligation and that it represents the means of succession and inheritance of property and assets.

However, in most, if not all, cases, a Will is the beginning of a number of issues that inheritors, beneficiaries and executors have to cope with when the person behind it passes on from this world.

What happens to your Will at the death of a person?

Upon the death of a person, it is normally his or her next of kin, a spouse, partner, child or children will contact the lawyer who holds the original Will.

Such a meeting would occur after the funeral ceremony and other religious rites are completed. In some cases, a person may leave his or her estate in a Will lodged directly with a lawyer (normally a long-trusted friend of legal firm) and the contents of that Will would be revealed to the beneficiaries and members of the grieving family at a meeting designated by the lawyer or the law firm.

The Next Steps

What happens next to the Will would usually depend on the value of the combined assets of the person who is deceased and has left a Will.

If the assets of the deceased are worth more than $16,000, then the Will needs to be sent to the High Court with an application for Probate.

The concerned lawyer can arrange this and the process is generally straight forward.

The Estate of the deceased would be advertised in a national newspaper as a Public Notice to any creditors or anyone who believes that they have an interest in the estate.

The estate must then not be distributed until 30 days has lapsed after the publication of the Public Notice to allow any claims to be made against the estate.

The Claimants

Who can Claim against an Estate?

Technically speaking, anybody can make a claim on an Estate.

This does not mean they will receive a benefit from that estate.

They would need to firstly give notice to the executor that they have a claim.

This should be in writing, and if the family of the deceased believe that the person claiming has a valid claim, they may agree to enter the name of the claimant into the deed of family arrangement. It is only after this step that the claimant may be allowed a share of the estate.

However, in many cases, families may not agree stating that the deceased had not left a provision in the Will for the claimant.

Common issues

The most common claims that I see as a lawyer are from illegitimate children (that nobody knew existed), de facto partners (that the family would not be aware of) and siblings who have been provided for unequally in Wills of their parents.

If no Deed of Arrangement is entered, then, either the claimant or the executor of the estate can file proceedings in a Court of law to deal with the dispute.

After hearing all the evidence and applying the law, the Court will decide if the claimant should receive a benefit from the estate and if so how much.

Each claim is considered on its individual merits and the outcome will depend on the facts of the case in relation to the laws of New Zealand.

Costly procedures

Regardless of whether the claimant is successful or not is another issue but the legal costs involved in the process of a disputed estate is extremely high.

In some cases, several lawyers may be involved as more than one party can file claims on an estate, complicating the issue.

How long does the process take?

An estate that becomes contested can easily take up to two years (if not longer) to resolve. This will mean the inheritors would not be able to access any of the assets or funds of the deceased until the disputes are resolved and the estate is distributed.

I have personally acted for estates that have taken up to five years to resolve.

Does this mean there is no way to protect one’s assets to ensure that it is distributed according to one’s Will?

Of course not.

There are ways of asset protection and hence make an appointment with your lawyer to discuss how you can ensure that your estate does not end up being contested.

Farah Khan is Partner & Notary Public Practice Manager at Khan & Associates Lawyers and Notary Public based in Papatoetoe, Auckland. She can be contacted on (09) 2789361. Facebook: Farahkhanlawyer.


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