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Testamentary trusts, Will trusts, Wills

Future proofing wills

Writing a will is in large part a leap of faith.  The will-maker’s wishes may be clear and objectively reasonable, for example providing for a spouse or partner on the expectation that children will be provided for when the surviving spouse or partner dies.  However, if on or more of the children are unhappy with the prospect of waiting for the survivor to die, there are many avenues for challenging a will.  The case of Fry v Fry provides an example of a disenfranchised step-son who was unhappy with his father’s decision to leave his estate to his wife in the first instances.  Accordingly, a claim was brought under the Family Protection Act 1955 claiming a breach of moral duty.

While no case was put forward that the deceased’s son had any financial need, this did not negate his father’s moral duty to provide for him.  This duty was not negated by his father and step-mother entering into mirror image wills that would see ultimate provision made for the children / step-children.

The court ordered an award of $175,000.  His Honour Justice Moore using the starting point of $460,000 as a 1/3 share of the estate (there were also 2 siblings who were not party to the proceedings).   His Honour, having found a breach of moral duty was concerned to ensure an award that would not impose unreasonable hardship on his step-mother.

It was also suggested  in the judgment that had the parties entered into life interest wills the outcome might have been different. It is also postulated, that mutual wills might have been another alternative.   As could have been settling an inter vivos trust.

Families, whether or not blended, can be tricky to navigate.  Where a will-maker wants certainty as to the outcome of his or her final testamentary decisions, it is wise to consider where challenges might arise and whether  will can be drafted to address these.

References:

  • Fry v Fry [2014] NZHC 2256

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