A well drafted, well considered will, is an essential component of adulthood.  However, how can the will-maker be sure that their wishes, as expressed in their will, will be carried out?

Benjamin Franklin (1706-90) said in a letter to Jean-Baptiste Leroy, 1789, which was re-printed in The Works of Benjamin Franklin, 1817:

“‘In this world nothing can be said to be certain, except death and taxes.”

Notice the he doesn’t reference the deceased’s will.

So to answer the above question – wills are not certain.  That said, having one, unless your wishes are in accord with the terms of the Administration Act means that you wishes are far more likely to be met, than if you don’t.

Why the uncertainty?  The reality is, that a will-maker’s “testamentary freedom” is subject to legislation provisions that empower the variation of challenge of a will.

The two most common challenges are probably those made in accordance with the Property (Relationships) Act 1976 and those made pursuant to the Family Proceedings Act 1955.

The Property (Relationships) Act allows the will-maker’s partner or spouse to decide whether to take any bequest made under the will; or to elect to have the will varied so that the survivor receives his or her entitlement under the Property (Relationships) Act.  This is not a challenge as such; but the exercise of an election the survivor has by right of law.

Challenges under the Family Proceedings Act are less clear cut.  Section 4 of this Act allows a child (and occasionally a more remote relation) to challenge the will on the basis that the will-maker has breached a moral duty owed.  Where this is the case the inquiry for the court it “as to whether there has been a breach of moral duty judged by the standards of a wise and just testator or testatrix; and if so, what is appropriate to remedy that breach. Only to that extent is the will to be disturbed.” (Little v Angus)

The difficulty with any challenge is the question as to who misses out if the challenge is successful?  And what of the case where the party who misses out is not related – for example where the estate was bequeathed to charity?  Historically it may have been that charities that attempted to protect their bequest were treated somewhat coldly by the courts.  However, in more recent times there appears to be a thawing of this attitude, which is demonstrated in the Court of Appeal decision in Auckland City Mission v Brown, an appeal from a High Court decision that awarded the will-maker’s daughter $1.6m from bequests to charity. Richardson P, who delivered the decision of the court noted that (my emphasis):

[24] The Judge remarked that, unusually, the charities played an active role in the proceeding and argued forcefully that further provision should not exceed $650,000. Elsewhere he compared the legacy to the City Mission with the total donations it received annually and with its annual income, commenting on the limited provision Mr Miller had made for the charities in his lifetime; observed that the bequest to the Cancer Society was directly associated with Freda’s death from cancer and, he inferred, was a gesture of both remorse and penitence on Mr Miller’s part; and he noted Mr Miller’s lack of any particular connection with the other charities.

…

[39] Turning to the charities, in the observation he made relative to the size of the legacy to the City Mission and what he drew from Mr Miller’s reasons for benefitting the Cancer Society, and lack of any particular connection with the other charities (para [24] above), the Judge appears to have overlooked that it is not for a beneficiary to have to justify the share which has been given (Williams v Aucutt, para [33] above) and that where the provision is sufficient to repair any breach of moral duty, the testator’s wishes should prevail (para [36] above). In this regard it is clear from the reasons he gave to his solicitor that Mr Miller did not act arbitrarily in selecting these charities.

[40] As well, charities such as the Cancer Society, the City Mission and the Salvation Army are regarded under our laws as serving the public good. In contemporary less closely knit communities affected by the economic and social changes of the last 15 years, charities may properly be regarded by altruistic testators as having an enhanced role. It is not unreasonable that the charities draw the attention of the court to their work and the benefits for the public which they can achieve with the support of substantial donations.

[41] On this general topic, in Pulleng v Public Trustee (para [23] above) Reed J said at p1029: “A bequest to charity is very fitting in the case of a testator who has ample means and can make such bequest without inflicting hardship on his own family”. And in Collins v Public Trustee (para [23] above), at p751, Skerrett CJ said that it was right to say that counsel for the Masonic Lodge had taken a proper attitude in submitting that adequate provision should be made for the widow and that the son, having received a good education, was sufficiently provided for and ought not to be granted further relief. To like effect, in Re Hawke [1935] GLR 700, 702, Callan J observed that it was not helpful to the court to have a one-sided argument and that there was no inconsistency on the part of the charity in submitting that the rights of the family claimants under the statute should be measured in a generous, not a niggardly fashion, and at the same time offering certain observations by way of testing and criticising the claims made for the children.

[42] We can see no basis for criticising the stance taken by the charities in this case. In some circumstances it may be appropriate for the charities simply to abide the decision of the court and provide relevant information as to the testator’s connection with and intentions in benefitting the charity. One such case is where competing claimants can be expected to test the respective claims. In other circumstances, as here, where there is no other beneficiary defending the will, and where the trustee was also the accountant for the Browns’ business, it is, in our view, entirely proper to support the will, test the claims, and while perhaps formally submitting to the order of the court, respectfully suggest what, if any, further provision should be made for the claimants.

The recent decision in Ilot v Mitson  could suggest an alternative current view.  However, in that case, which was decided by the England and Wales Court of Appeal, the willmaker left her entire estate to charity due to a life-long estrangement from her daughter who left home at 17 to live with her boyfriend (whom she later married and had 5 children with) much to her mother’s disapproval.  The daughter pursued the matter and ultimately received and award of £163,00 from and estate o £500,000.  That decision was commentated on with some concern by charities in the United Kingdom who derive £2 billion a year in legacy income.

Possibly the solution lies in will-makers who require certainty disposing of more of their estate during their lifetime.  This of course leads to the risk of living longer than anticipated.  However, much of those concerns can be met though a well structured trust.  Not that trusts are the solution to everything that might ail one.  However, challenges to trusts along the lines of – if the trust hadn’t been settled there would be more in the estate for me to challenge have not yet found favour with the courts in New Zealand.  See for example Penson v Forbes and Do trusts still work?

References:

• Little v Angus [1981] 1 NZLR 126
• Ilot v Mitson [2015] EWCA Civ 797
• Auckland City Mission v Brown [2002] 2 NZLR 650
• Penson v Forbes [2014] NZHC 2160