Phone:
+ 64 9 815 3528
Fax: 
+ 64 9 815 9576
 		 Physical: 
42 St Lukes Road, St Lukes, 
Auckland 1025
Email: 
peter@petermccutcheon.co.nz		 Mail: 
PO Box 433
Shortland Street
Auckland City 1140


 
Practice Areas > Estate claims and disputes

Estate claims and disputes

Background law

“Estate claims” are claims made against the estate or the will of a deceased person by one or more of the beneficiaries of the estate, or another creditor of the estate.

They usually involve a claim the will should be avoided (i.e., rendered a nullity by the law) altogether due to a rule not being observed; that an expectation not mentioned in the will should be enforceable (perhaps under the Law Reform (Testamentary Promises) Act 1949); or a claim that a particular beneficiary, certain beneficiaries or class of beneficiaries, should have been included or taken a greater share under the will (usually under the Family Protection Act 1955).

Claims can also be brought against an estate under the Property (Relationships) Act 1976 by a surviving spouse or de facto partner who qualifies, that he or she intends to claim entitlements under that Act rather than the will.

Claims under the Family Protection Act 1955 are the most common.  

Notice of a claim prevents the executor or executrix of the will distributing the estate until the claim is resolved.

The starting point is always that, as long as the required legal formalities are satisfied, the will writer is free to dispose of his or her estate as they wish.

The Family Protection Act 1955, however, provides the Court may amend the effect of the will to provide for or better provide for any person the Court considers the will writer had a “moral duty” to provide for at the date of death, considering “all of the circumstances” (including the terms of the will; the relationship to the will writer; the size of the estate; and the position of the applicant). The moral duty is balanced against the freedom of the will writer, to distribute his or her property as he or she sees fit.
 
Frequently encountered issues

 
  • Emotional issues being brought to the fore on the death of the will writer and the reading of the will;
 
  • Advice required as to whether a claim is able to be made or how a claim should be defended.   
 
What you should provide when instructing us
 
  • A written narrative setting out your version of what the problem is; what has happened; who the various parties are; and what your objectives or concerns are;
 
  • A copy of the last will and any earlier wills and documents you have copies of and which you think should be taken into account;
 
  • Copies of any Court or other documents you have received or sent to date. 

About Us

Peter McCutcheon is a Barrister and Solicitor, specialising in commercial and relationship property litigation. Peter has an economics degree, a post graduate banking diploma (with distinction), and a law degree from the University of Auckland (with honours). Peter's more general litigation practice areas are commercial litigation, relationship property litigation, shareholders' disputes, insolvency and company liquidations, caveat disputes, estate disputes and criminal law.  Peter is committed to providing excellent legal services to companies and people who understand value.