New Zealand’s succession law framework, governing who is entitled to receive an individual’s property when they die, has not undergone a comprehensive review in decades!
A progressive societal shift in recent years has sparked the Law Commission to undergo a review of New Zealand’s succession law framework. Whilst property is normally distributed via a person’s will upon their death, there is a plethora of legislation affecting what property is included in an estate and the various options for challenging the contents of a will. The Law Commission has recommended a review of such legislation. They have released an issues paper and a consultation website, presenting a variety of reformative options. They intend to report to the Minister with their findings and recommendations by the end of 2021.
The Commission invites feedback on three parts.
(1) Succession law for Contemporary Aotearoa New Zealand
Part 1 examines the foundations of New Zealand’s succession law. It considers the current law, placing it in the context of our ever-changing demographic. The general matters which the Commission deems to make good succession law are as follows:
- The law should be consistent with the Treaty of Waitangi
- The law should reflect values and attitudes of contemporary Aotearoa New Zealand
- The law should align with fundamental values and principles of Aotearoa New Zealand’s democratic society and comply with its international obligations
- The law should be clear and accessible
The desire for a framework that is clear and accessible is paramount. This involves the primary proposal that the vast, existing legislative framework should be consolidated into a single overarching Act. Whilst not entirely codifying the law, this would be regarded as the primary source.
The Law Commission has importantly noted that none of the existing legislation appropriately acknowledges the Māori approach to succession. Succession in te ao Māori reflects the underlying importance of whānau. Various suggestions for considering te ao Māori have included allowing tikanga Māori to determine succession matters instead of state law. The suggestion of a separate regime for Māori succession, more aligned with the Treaty principles has also been proposed.
(2) Claims and entitlements
Part 2 details the proposed entitlements to and claims against estates. These include changes to:
- Relationship property entitlements
- Family provision claims
- Contribution claims
- Intestacy entitlements
- Succession and taonga
In summary, the Commission proposes that a surviving partner to a qualifying relationship should have a right under the new Act to choose a division of relationship property on the death of their partner. However, a de facto relationship of less than 3 years should not apply. The surviving partner and children (of a prescribed age) should be entitled to claim “family provision” from an estate. The class of potential claimants under the FPA would no longer include parents and grandchildren however the realm of ‘children’ would expand to include ‘accepted children’ and ‘unborn’ children. Furthermore, people who have contributed substantially to the deceased’s estate and were not compensated should be entitled to claim against the estate.
The rules of intestacy would be as follows:
– If there is a surviving partner however no descendants, the partner should be entitled to the entirety of the estate
– If there is no such surviving partner, all of the descendants would share the estate
– If there is a surviving partner and descendants, there are a variety of options which consider whether the surviving partner was also the deceased’s children’s parent.
New Zealand’s current intestacy regime has been designed to reflect as accurately as possible what most intestate people would have desired. Tikanga Māori however, may reveal a contrasting basis to consider such entitlements. The Commission thus considers it vital to consider whether applying tikanga should be an option for Māori New Zealanders.
(3) Making and resolving claims
Finally, part 3 considers the process of making and resolving estate claims, both in and out of court. Most importantly, for all claims, the Court should have the discretion to order that the award is sourced from particular aspects of the estate.
For a full summary of all of the proposed changes, please see the Law Commission summary and their issues paper.