Speaker 1: CHIELDA. I'm Chelsea Daniels and this is the Front Page,
Speaker 1: a daily podcast presented by the New Zealand Herald. Losing
Speaker 1: a loved one is one of the worst things a
Speaker 1: family can go through, but it can get a lot
Speaker 1: worse if people start fighting over the will before the
Speaker 1: body's even cold. With so many of us relying on
Speaker 1: inheritance these days to get on the property ladder, being
Speaker 1: cut out of a will can be a devastating blow,
Speaker 1: but contesting it can sometimes be more trouble than it's worth.
Speaker 1: So how should you go about getting your fair share
Speaker 1: and what can you do to make sure your final
Speaker 1: wishes are clearly communicated? Today on the Front Page ends
Speaker 1: at Herald, senior journalist Jane Fair joins us to share
Speaker 1: the dues and don't She's picked up from legal experts
Speaker 1: when it comes to inheritance. Jane, when we talk about
Speaker 1: laws and inheritance, how much of the decision making is
Speaker 1: in the hands of the person actually writing the will
Speaker 1: and how much is dictated by the law.
Speaker 2: A bit of both, because the willmaker has specific wishes,
Speaker 2: but they have to do the will within the law.
Speaker 2: So only personal property can become part of the estate.
Speaker 2: So one way that people if they want to cut
Speaker 2: someone out of their will, perhaps a family member they've
Speaker 2: fallen out with, they can use a trust and that
Speaker 2: means that no one in the family can attack that
Speaker 2: trust if they're not a beneficiary. But that is something
Speaker 2: that the Law Commission want changed. They had a big
Speaker 2: review that came up with one hundred and forty recommendations
Speaker 2: about the succession laws and inheritance, and they want the
Speaker 2: courts to have greater power to attack trusts.
Speaker 1: You've recently spoken to a number of legal experts about
Speaker 1: the intricacies of writing and contesting wills. What are some
Speaker 1: of the most common familial battles that can emerge when
Speaker 1: it comes to this kind of thing.
Speaker 3: I think it's the element of surprise.
Speaker 2: The people I spoke to, the estate planners and the lawyers,
Speaker 2: they recommended that you are transparent about your will, that
Speaker 2: you discuss it with your family, your children, so they're
Speaker 2: all aware there are no naszi surprises, and you tell
Speaker 2: them the reasons why they might not like it, but
Speaker 2: they probably won't react quite as violently as if they
Speaker 2: didn't know what was coming. One of the things they
Speaker 2: also said that is, if you are going to cut
Speaker 2: a child out or someone who is expecting to inherit.
Speaker 3: They didn't recommend that.
Speaker 2: They morell As said, you have to show that you've
Speaker 2: discharged your moral duty, that you've thought about them. So
Speaker 2: a better way, they say, is to leave a normal amount.
Speaker 2: It might only be five thousand, or it depends on
Speaker 2: the size of the state, but you leave a nominal
Speaker 2: amount and also some documentation explaining why you haven't treated
Speaker 2: them equally, so that if it did go to the court,
Speaker 2: the court had an idea of what you're thinking was.
Speaker 1: What are some of the worst will fights that you've
Speaker 1: heard about.
Speaker 3: Some of them go on for years.
Speaker 2: You have to go through the High Court and the
Speaker 2: High Court's backlogs, so you have to wait a long time.
Speaker 2: It can be incredibly expensive. Fifty one hundred thousand, but
Speaker 2: some of the lawyers I spoke to said way more
Speaker 2: than that, and it can go on for years because
Speaker 2: they just keep relitigating. And in the end, it's not
Speaker 2: really about the money. It's about them being hurt. It's
Speaker 2: about old family rivalries, probably sibling stuff that goes back
Speaker 2: decades that comes out after mum and dad are dead,
Speaker 2: and if they're not going to inherit, then no one's
Speaker 2: going to inherit because the estate gets whittled down with
Speaker 2: legal costs the executives have to defend.
Speaker 3: So you've spoken to the experts.
Speaker 1: What are some tips to writing a will to ensure
Speaker 1: things don't go pear shaped after you die.
Speaker 2: Making sure that the will is up to date, making
Speaker 2: sure that the family are treated equally.
Speaker 3: That's the main thing.
Speaker 2: And if you're not going to that, you leave clear
Speaker 2: reasons why you're not. You need to think about step
Speaker 2: children and if a step mother is left, whether your
Speaker 2: own children in other words, is step children of the stepmother.
Speaker 2: They might fall out with her and attack the will
Speaker 2: or vice versa. She might think that the children have
Speaker 2: had enough and they've been left too much and she
Speaker 2: hasn't been left. So it's all those sort of family dynamics.
Speaker 2: And if you don't get it right and the family
Speaker 2: do fall out, it causes bitter family divisions that are
Speaker 2: never resolved.
Speaker 1: And when it comes to making claims, who does and
Speaker 1: doesn't have the right to make one.
Speaker 2: Interestingly, the Law Commission, one of their recommendations, which I
Speaker 2: think will be quite controversial, is that they've recommended one
Speaker 2: of the options is that children over the age of
Speaker 2: twenty five will not be able to contest their parents' will.
Speaker 2: The Ministry say that they are a long way from
Speaker 2: even looking at those recommendations, so it's not going to
Speaker 2: happen anytime soon, but that is something to keep in mind.
Speaker 4: One of the options put forward by the Law Commission
Speaker 4: is that only children under twenty five can make a
Speaker 4: claim against their estate, and really it's taking into consideration
Speaker 4: the differences between the obligations of a parent to pass
Speaker 4: on an inheritance or look after their children versus actually
Speaker 4: the freedom of a person to make a choice about
Speaker 4: how they want their estate to ultimately be distributed.
Speaker 2: So who does have the right to claim against a
Speaker 2: will are children and spouses and long term partners, and
Speaker 2: in some circumstances, step children if they've been supported by
Speaker 2: the willmaker during their lifetime, and even parents and grandparents
Speaker 2: who have been supported by the willmaker can make a claim.
Speaker 2: Those who can't claim a sibling, so a brother or
Speaker 2: sister can't claim against each other's wills, and adopted children
Speaker 2: they can claim against the parents who brought them up,
Speaker 2: but they can't claim against biological parents' will, and in
Speaker 2: the case of fungi where Maori children have been adopted
Speaker 2: out to a family member. There's been a recent case
Speaker 2: in the High Court that failed, so fungi children can't
Speaker 2: claim against their biological parents.
Speaker 1: Why isn't it as simple as this is what the
Speaker 1: deceased person wanted.
Speaker 2: I think it's human nature that the children might behave
Speaker 2: when mum and dad are alive, they keep their the
Speaker 2: family bond in a way. But then all those rivalries,
Speaker 2: like mum always favored your dad always favored you. You've
Speaker 2: got a lot more help than me, you're more successful
Speaker 2: than me. I need the money more. All those sort
Speaker 2: of human dynamics come out, and you know where this
Speaker 2: money people behave really badly.
Speaker 1: Does the fact that there's so much wealth in this
Speaker 1: country tied up in property complicate inheritance at all?
Speaker 2: One of the interesting things that Patrick Gamble said, he's
Speaker 2: the CEO of Perpetual Guardian. He said that if estate
Speaker 2: planning is not done well and the will maker is
Speaker 2: not a clear will, he called it tumbling out of
Speaker 2: the middle class. So he was talking about the wealth
Speaker 2: of the baby boomers. A lot of the next generation
Speaker 2: and the generation after that are relying on that wealth.
Speaker 2: To buy a home or pay off their mortgage, and
Speaker 2: if it goes wrong where they get cut out or
Speaker 2: the estate gets whittled away with everybody fighting over it.
Speaker 2: Suddenly you've got someone who was brought up, you know,
Speaker 2: in a reasonably wealthy family, expected to own a home, can't.
Speaker 5: Society is always evolving and the way we live is
Speaker 5: always evolving, so you can, I'm sure understand that the
Speaker 5: number of blended families is much higher now than it
Speaker 5: was seventy years ago. There's also an emphasisthakonga maori now
Speaker 5: and other cultural norms and making sure they're covered in
Speaker 5: the legislation. And also we're facing the largest transfer of
Speaker 5: wealth we've ever seen in New Zealand history, so the
Speaker 5: baby wom is over the next fifteen to twenty years
Speaker 5: we'll leave around about a trillion dollars in assets. So
Speaker 5: you need to make sure that inheritance law is very tight,
Speaker 5: make sure we get it right.
Speaker 1: What's the best advice for how to contest? Still will?
Speaker 1: I've thankfully not how to do that yet, hopefully never will.
Speaker 1: My brother and I usually get along, but how would
Speaker 1: I go about it if I did have to?
Speaker 3: You have to contest within a year of probate.
Speaker 2: So probate is where the will is more or less
Speaker 2: made an official document by the High Court, so you
Speaker 2: got twelve months, but they recommend it contesting it as
Speaker 2: soon as possible, because the executives can actually disperse the
Speaker 2: assets within six months of probate, so if there's nothing
Speaker 2: left to disperse, there's nothing left to fight about it.
Speaker 3: So the sooner the better.
Speaker 2: Lawyers more or less say don't go to court if
Speaker 2: you can, and most are settled out of court because
Speaker 2: everybody understands how much it's going to cost, so.
Speaker 3: Mediation is a possibility.
Speaker 2: The issue with mediation is it's not legally binding, so
Speaker 2: if they change their mind, it could still end up
Speaker 2: in court. And the other, I think better way is
Speaker 2: a deed of family arrangement, and that's where the executives
Speaker 2: and the family members and everybody is fighting actually come
Speaker 2: to an agreement to alter the terms of the will
Speaker 2: so that they say, yeah, fair enough, we'll give you
Speaker 2: ten grand to go away or whatever.
Speaker 1: You've mentioned. The one hundred and forty recommendations that have
Speaker 1: been made by the Law Commission to tidy up these rules,
Speaker 1: how many of those have it been actually taken up
Speaker 1: and put into law or is it quite a process?
Speaker 2: No, none of them and it will be years. The
Speaker 2: only one, the only recommendation, it was actually one hundred
Speaker 2: and thirty nine out of one hundred and forty is
Speaker 2: the limit when someone dies and the estate is worth
Speaker 2: fifteen thousand or less, you don't need to go for
Speaker 2: probate and go through all the drama. You can just
Speaker 2: if you're a family member disperse that The Commission have
Speaker 2: recommended that that amount, I mean.
Speaker 3: It's ridiculously low.
Speaker 2: It was set in two thousand and nine, so they
Speaker 2: recommended that that amount be brought up to twenty twenty
Speaker 2: four level, or that it is adjusted to inflation from
Speaker 2: then on. That's the only recommendation that there's even been
Speaker 2: looked at. The issue is that the Commission also looked
Speaker 2: at the property relationship issue as well, and the government
Speaker 2: wants to look at both those together. It's a huge
Speaker 2: body of work. It will need consultation. You've got quite
Speaker 2: contentious issues like children under the adju of twenty five
Speaker 2: can't inherit, which are going to divide the community. So
Speaker 2: I think it's probably not in this decade.
Speaker 1: I guess if you're thinking about creating a will and
Speaker 1: doing something before you die and to make sure that
Speaker 1: your wishes.
Speaker 3: Are held up.
Speaker 1: Are there any other ways other than a will where
Speaker 1: you can make sure that your family members get what
Speaker 1: you want.
Speaker 2: The other way is to gift assets and money in
Speaker 2: your lifetime, and as a result, there's nothing really left
Speaker 2: or very little left to fight over in the estate.
Speaker 2: The only way that anyone could contest that was if
Speaker 2: they felt you'd done that under duress or that you
Speaker 2: went mentally capable. That those sorts of reasons they could contest.
Speaker 2: But other than that, you're free to give you two
Speaker 2: sons and a daughter assets and leave another one out.
Speaker 6: More than a third of older kiwis are not waiting
Speaker 6: until they die to transfer their wealth to loved ones.
Speaker 6: According to New Zealand's Seniors Report, fifty seven percent of
Speaker 6: those surveyed so they're worried about what they'll leave behind
Speaker 6: to their kids because of current economic challenges. Ninety one
Speaker 6: percent thought home ownership in particular is becoming increasingly difficult,
Speaker 6: especially for those whose parents can't help them out.
Speaker 1: I guess it's an incredibly interesting but also sad topic,
Speaker 1: isn't it, Because we're essentially talking about someone having wishes
Speaker 1: and doing a will and then once they pass it
Speaker 1: could break up entire families. Have you seen in your
Speaker 1: research in your writing, is it generally quite upsetting?
Speaker 3: It is.
Speaker 2: I've written about this before. I've written about puritance, and
Speaker 2: I've also written about how you pass the family batch
Speaker 2: and holiday home on to your children without them all fighting,
Speaker 2: and also the family farm. And every time I write
Speaker 2: those stories, I get emails and from people with quite
Speaker 2: sad stories that date back years, some of them, some
Speaker 2: of them back to the seventies, and they've never quite
Speaker 2: got over the fact that they fell out with their brother,
Speaker 2: or their sister was given more than they did, or
Speaker 2: a stepmother ended up with everything and she'd only been
Speaker 2: with a husband for five years and they lost all
Speaker 2: their mothers. China, all those sort of emotional stories has
Speaker 2: plenty of them around, And I know in my own life,
Speaker 2: I know some of my family friends who don't speak
Speaker 2: to each other as a result of falling out over
Speaker 2: the will, and so their children, the cousins grow up
Speaker 2: not knowing each other. Whereas when my parents died, my
Speaker 2: mother died first, but when my father died, he left
Speaker 2: really clear instructions. He talked to the three of us
Speaker 2: individually and together. We had a family lawyer involved, and
Speaker 2: it was all done amicably and we're all was a
Speaker 2: great experience.
Speaker 3: Really.
Speaker 1: I know that my papa back in Adelaide has given
Speaker 1: us post it notes before he passes, and where to
Speaker 1: put colored post it notes on things around the house
Speaker 1: that we want, So it can actually be quite a
Speaker 1: nice experience, you know, remembering that Papa wanted me to
Speaker 1: have the brown chest to Field that I've always loved.
Speaker 1: You know, it's quite somber, isn't it. But also it
Speaker 1: can be translated into a quite nice experience.
Speaker 2: Well, yes, unless somebody swaps the post it notes or
Speaker 2: accidentally on purpose drops off.
Speaker 1: Unless my brother wants that chest to field after Papa goes,
Speaker 1: and someone and one of the family says, but she
Speaker 1: promised those pills to me as well.
Speaker 3: So yeah, it's better to write it down.
Speaker 1: I have to remember that next time I go home. Finally, Jane,
Speaker 1: reading a piece, it does seem that the overall advice
Speaker 1: is that contesting a will might cost more than it's worth, hey,
Speaker 1: and do more harm than good.
Speaker 3: I guess.
Speaker 1: So from the experts you've spoken to, what's the overall advice,
Speaker 1: Is it really worth kicking up that much for fast?
Speaker 2: Well, I guess the lawyers want you to because they're
Speaker 2: charging the fees hit they get paid. They're the only
Speaker 2: ones that get paid. And it isn't cheap. I mean,
Speaker 2: it is fifty to one hundred thousand. If there's only
Speaker 2: two hundred thousand to fight over, the estate has to
Speaker 2: pay similar legal fees on the other side, so they're
Speaker 2: paying fifty to one hundred thousand or more, so there's
Speaker 2: not much left to fight over, depending on how many
Speaker 2: beneficiaries there are.
Speaker 3: Thanks for joining us, Jane.
Speaker 1: That said for this episode of the Front Page. You
Speaker 1: can read more about today's stories and extensive news coverage
Speaker 1: at enzed Herald dot co dot nz. The Front Page
Speaker 1: is produced by Ethan Siles with sound engineer Paddy Fox.
Speaker 1: I'm Chelsea Daniels. Subscribe to The Front Page on iHeartRadio
Speaker 1: or wherever you get your podcasts, and tune in tomorrow
Speaker 1: for another look behind the headlines.