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Will woes and family drama: will drafting, executor responsibilities, and balancing family relationships

Will woes and family drama: will drafting, executor responsibilities, and balancing family relationships

Written by:
Taufil Omar

In the intricate landscape of estate planning and the execution of wills,  the selection of legally appointed executors and trustees is a real big deal. Take, for example, the Lane v Goldson [2023] NZHC 2620 case – it's like a crash course in will drama.

So, Mr. Gifford had this $4 million estate, and he picked his partner and son as executors. All seemed good until his estranged daughter, Rebecca Lane, threw a legal curveball claiming her piece of the pie. We're talking family drama and legal twists, especially with Rebecca trying to bring in the Public Trust to handle the estate using Section 19 of the Administration Act 1969.

Spoiler alert: it didn't quite work out.

This story's a real eye-opener on the wild ride of wills, family dynamics, and the not-so-simple task of divvying up the goods.

The story of Mr Gifford: Lane v Goldson [2023]:

How often do we see our elderly suffer from Alzheimer's disease or some mental illness that renders them to a rest home or similar.  Naturally, Mr Gifford, the deceased had appointed his partner of 30 years, Anne and his son, Benjamin as executors.  Mr Gifford also had a family trust which had been dissolved to realise the value and allow for his upkeep during his illness and remaining days.  This is a typical scenario.  We discuss interesting issues in Lane v Goldson [2023] NZHC 2620.

We can extract few important elements out of the case:

·         The drafting of your will, the appointment of your executors and trustees and the importance of considering who to appoint;

·         The importance of acting prudently and in a timely fashion as executors and trustees; and

·         Tidying up one's affairs for instance, reviewing and/or winding up your family trusts if required to cater for future needs.

The estate was worth around $4m and thus the claim by the estranged daughter, Rebecca Lane ("Rebecca") who had previously in 2012 had a go at her mother's estate and gained around $3m-$4m under the Family Protection Act 1955 regime.  The father and daughters relationship was in ruins post litigation until Mr Gifford passed away.  However, this did not stop Rebecca to claim further provision from the fathers estate even though Mr Gifford had left her $5,000.00.

Rebecca believed she should have been left more than $5,000.00 and Mr Gifford failed to discharge his moral duty to her as a daughter.

To achieve this, Rebecca sought to appoint the Public Trust (PT) to administer Mr Gifford's estate and relied on section 19 of the Administration Act 1969 ("the Act").  This is after Mr Gifford had already appointed his partner and his son as executors.  It is hardly easy even if one believes to have done everything.  The importance of proper advise and exploring potential hazards are an important part of estate planning.

Section 19 of the Act requires the executor to have neglected or refused to prove the will before the Court may intervene.  The gist is Downs J discussed another case Ruocco v Wright CIV-2008-409-311, 16 December 2008 to clarify the purpose of section 19 was to enable the Court to intervene so that administration of an estate can be completed as contrary to allowing the same for estates already administered and wound up.

There were two other reasons discussed by the court however, this discussion is focused on the removal and replacement of legally appointed executors and whether section 19 of the Act may be relied on.  The court found that section 19 was not the correct vehicle and Rebecca's application was dismissed with costs to be paid by her.

It is vital for executors and trustees to act in the best interest of the beneficiaries and in a timely manner.  Obviously, at the same time, the executors need to strike a balance in making sure the estate is also not administered without addressing any potential claims from disgruntled family members as well as potential creditors.  There are important timelines to adhere to allow executors to rely on indemnities.   It may take around 2-3 months to obtain probate or letters of administration.  The executor must hold onto the estate's assets for 6 months after the grant of probate or letters of administration.

Make sure you get your affairs set-up in the best way possible to help avoid unintended outcomes. Our private client team is able to assist you navigate through the complexities of estate planning and estate administration. 

Don't hesitate to contact Taufil Omar - Special Counsel, Private Client Team

© McVeagh Fleming 2024

This article is published for general information purposes only.  Legal content in this article is necessarily of a general nature and should not be relied upon as legal advice.  If you require specific legal advice in respect of any legal issue, you should always engage a lawyer to provide that advice.

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