#8393 - Succession Wills And Intestacy - LAWS203 Property Law

Succession (Wills + Intestacy) Limits to testamentary freedom: * Te Ture Whenua Maori Act re Maori land ? Maori land must go to another Maori in the bloodline, spouse can only get a life interest if not Maori, not actual ownership * Property (Relationships) Act ? Partners can take equal share of property, but then lose testamentary inheritance * Family Protection Act ? Idea: A person who dies should not leave their surviving spouse/children unprovided for if they are in need of maintenance an d support. ? The courts have interpreted the Act much more broadly: expected to provide for your children, even if they are adults, and ri cher than you were. ? Very likely that children will upset the will under the FPA. * Testamentary Promises Act ? Allows someone who has been promised provision from the estate as a reward of services to the deceased when the deceased did not create such a provision. Intestacy rules s 77 Administration Act 1979 If someone dies intestate (without a will), the Act specifies how the real and personal estate is to be left: Spouse only Spouse takes 'personal chattels' absolutely From the residue, prescribed amount (155 000) + interest Remaining residue held on trust for spouse. Spouse + issue Spouse takes personal chattels absolutely From residue, spouse takes prescribed amount Remaining residue: 1/3rd spouse, 2/3rds issue Spouse + parents Spouse takes personal chattels absolutely (No issue) From residue, spouse takes prescribed amount Remaining residue: 2/3rds spouse, 1/3rd parents Issue, no spouse All of estate is held on trust for issue. Spouse: includes de facto partner, civil union partner Personal chattels (s 2): vehicles, animals, furniture, articles of personal use, etc. etc. owned by deceased, or in which he had an interest as debtor under PPSA, but not chattels used exclusively/principally for business purposes, or money/securities for money. If house on Maori land: s 109 Te Ture Whenua Maori Act 1993 To kids, subject to life interest to husband So husband can live for the rest of his life/when he remarries/repartners. Rest of estate: s 77 Administration Act Wills Characteristics of a will 1. Ambulatory, revocable During course of testators lifetime, they are not binding on anyone, and may be altered. During testator's life, document showing his intentions for what would happen if testator died right then. 2. Not binding The will gives beneficiaries no property interest in the deceased's estate before death. The testator is not bound by his will, and can deal with the property freely. 3. Animus testandi Document must be made with the intention to be making a will. 4. Formality requirements: s 11 Wills Act 2007 (1) A will must be in writing (2) Must be signed and witnessed (3) Will-maker must (a) Sign document (b) Acknowledge that a person directed by him signed in his presence (4) At least two witnesses must (a) Be together in the will-maker's presence during (3) (b) Each state on the document, in the will-maker's presence, that they were present. (c) Each sign in will-maker's presence. Formal requirements relaxed: s 14 High Court may declare will valid if If a document appears to be a will, does not comply with s 11, and was made in or out of NZ, and the High Court is satisfied that the document expresses the deceased's testamentary intentions It may make an order declaring the document valid. Considerations: The document Evidence on the signing and witnessing of the document Property Page 17