Ex-files: Can my mother leave my sister out of her will?

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COMMENT:

Q: My mother recently passed away. Before she passed, she had been living with my partner and me. Mum left a reasonably modest estate. Her will leaves everything to my brother and me. He had actively taken care of her in her old age. My little sister was not provided for in the will. She is very well-off, and she barely spoke to mum. She is now threatening to challenge the will. Can she do this? We also can't agree whether mum wanted to be buried or cremated. Who gets to decide what happens?

A: Losing a parent is difficult for everyone in the family. Many decisions will need to be made after their death. If family members cannot agree on these decisions, significant tension can arise. Relationships between family members can become strained if some have received less than others in the deceased's will. This strain will be greater if someone was excluded altogether.

Challenging a will

Under the current law, if a child feels their deceased parent has not adequately recognised them, they are entitled to make a claim to their estate. The Family Protection Act provides that a person is responsible for the proper maintenance of close family members. If they fail in this duty, then the court can order provision be made for them out of the estate.

Your sister may make a claim against the state within 12 months of your mother's will being recognised. The court will consider several factors including:

• Your mother's wishes.

• Your sister's current and likely future position.

• The size of the estate.

• The relationship between your mother and sister.

• The moral duty of your mother to provide for your sister.

Moral duty

If your sister can prove that your mother had a moral duty to provide for her and that duty was breached, the court will make a provision for her out of the estate. As only your sister has been left out of the will, it is likely the court would consider your mother breached her moral duty to her.

Your mother may have felt your sister didn't need to be provided for given she is well-off. However, providing for children in a will is not just about money. Many people perceive inclusion in a parent's will as recognition of their place in the family and an acknowledgement of the bond they shared with their parent.

Steps for resolution

Taking an estate claim to court can be a lengthy and expensive process. It is also likely to aggravate any tensions between you. If you want to maintain a relationship with your sister, consider whether you and your brother are willing to share your inheritance with her. As you provided for your mother in her old age, you may feel entitled to the provision you have received. Your sister may be willing to accept a less than equal share. A mediator could help guide the discussion as to how much would be appropriate to share.

Law change

Some people think that financially independent adult children should not have any claim to inherit from their parents. They perceive testamentary freedom to be of the utmost importance. The Law Commission is currently undergoing research as to whether the public feels that the current law reflects the attitudes and values of New Zealanders.

Burial or cremation

If a person has made a will, it will usually include a direction that outlines the deceased's preference. However, it is ultimately up to the deceased's family to decide. This can be difficult when there is a disagreement as to what the family thinks is best. The law is not clear on how these disputes should be resolved.

In general, the court will not be willing to intervene. The decision will have to be made very soon after the deceased has passed. Therefore, it is not appropriate to engage in a lengthy court process. It is for your family to decide what is best. You may consult funeral and bereavement services, including bereavement counselling, to help you resolve the dispute.

•Do you have a family law question? Email it to js@bastionchambers.co.nz. Questions should not exceed 200 words. Please provide a phone number. Your name will not be published. Jeremy cannot answer all questions, correspond directly with readers, or give legal advice. Jeremy's advice is of a general nature, and he is not responsible for any loss that any reader may suffer from following it.

• Jeremy Sutton is a senior family lawyer, specialising in divorce cases where there are significant assets, including family trusts and complex business structures