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Authors: Jacqui Beilby, Penelope Stevenson
Published: 22 July 2015 
Pages: 19

Introduction

This paper has its genesis in a seminar presentation on behalf of NZLS (Auckland) in Auckland in February 2015 and is the background reading for our webinar presentation. It has been devised with regard to a fact situation regarding an estate which is to be further developed in the webinar.

Our work concerns estates and the issues that can arise on the administration of estates. We are familiar with the issues that arise for executors, for clients who are named as beneficiaries in wills, and for family members who may have not been named as beneficiaries or who have other concerns with their share of the estate of a family member.

We have prepared this paper with two goals in mind.

Our first goal is to provide practitioners with a practical “roadmap” for aspects of the management of claims concerning estates under the Family Protection Act 1955 and Part 8 of the Property (Relationships) Act 1976. Any claims for surviving spouses and for other family members need to be made within the timeframes that are provided for in this legislation. Estate administrators need to be aware of the possibility of claims being made against an estate in the discharge of their responsibilities.

Our second goal is to invite practitioners to consider the family relationships that are provided for in the legislation under consideration. We discuss, as a discrete example, a recent Supreme Court decision which emphatically demonstrates that the legislation does not reflect contemporary 21st century family dynamics. This is the decision in Wood-Luxford v Wood [2014] 1 NZLR 451 which considers the definition of “step child” in the Family Protection Act 1955 and arrives at a result that is neither consistent with the family’s view of itself nor allows the step child to have access to necessary maintenance and support from his step father’s estate.

After setting out the fact situation, the paper outlines the framework of Part 8 of the Property (Relationships) Act 1976 and the relevant provisions for a claim by a surviving spouse. The paper refers to factors for a surviving spouse to take into consideration in deciding whether to either apply for division of relationship property or take under the will of their deceased spouse including timeframes. The next part of the paper deals with the range of claimants under the Family Protection Act 1955, the matters for advisors to consider in assisting potential claimants to decide whether to bring a claim, and concludes with a section on practical issues for estate administrators to address.
 

Content outline

 
  • Estate Administration and the Property (Relationships) Act 1943 (PRA)
    • Part of the PRA
    • Property subject to claim
    • Property not subject to claim
    • Time limits for application for division of relationship property
    • Making the election
  • Estate Administration and the Family Protection Act (1955) (FPA)
    • Who can claim
    • Wood-Luxford v Wood [2014] 1 NZLR 451
    • Time limits for bringing a claim
    • Assets subject to claim
    • Assets not subject to claim
    • Proper maintenance and support and moral duty
  • Practical considerations for executor and trustee
    • Identifying barriers to distribution
    • Disclosure of documents
    • Duty to act impartially
    • Protection of administrator against claims
View contents page
Jacqui Beilby 2015 Penelope Stevenson 2015
Jacqui Beilby
Public Trust
Auckland		 Penelope Stevenson
Barrister
Auckland

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