A judge can overturn the instructions made in a will, so ensure it is fair. Photo / File
A judge can overturn the instructions made in a will, so ensure it is fair. Photo / File
Opinion
"Last will and testament."
The name of the legal document which outlines how you wish your property to be distributed at your death sounds so final, incontrovertible.
It is your lasting legacy. A way you can provide for your loved ones: dependent children, a spouse or partner, friends, pets, acause close to your heart. A way for your name to live on in the form of a bequest, or an anonymous gift to a person or organisation in need.
A will might be in line with beneficiaries' expectations - or it may involve some surprises. Its contents might be seen as generous, or punitive, fair or unjust. They are likely to reflect circumstances and relationships, current and historic. They may not be "pretty". After all, the reality of family relationships is often far from our ideals. The will may, therefore, reveal hurt and anger, judgement and retribution, frustration and disappointment.
But regardless of what, who, how and why, it's your money and assets, your decision, right?
Last month, the High Court at Auckland ruled in favour of four estranged children of a strict Catholic Central Otago man, Jack Enright, who died in 2014, leaving millions of dollars exclusively to his youngest son.
Your last will and testament may not, in fact, be the last word on the matter. Photo / 123RF
There are sympathies on both sides. On the surface, it could be easy to think the plaintiffs had been unfairly treated simply because they had not adhered to the same strict Catholic values of their father. Equally, it could be seen as unfair that the father's views had been ignored. If faith was fundamental to him, and he deemed some actions a betrayal, why can't he "reward" someone who might have been more aligned with those values?
As it is, the complex case was not so much one of faith, as fairness and legality. Justice Matthew Palmer reviewed all the facts and, while acknowledging the Court's role of "interpretation" in matter of trust deeds, established there had been breaches of trust and fiduciary duty in relation to the trust which had been initially established with all six children (one had since died) as discretionary income beneficiaries.
It's now held that parents have a "moral duty" in death to provide for adult children - even those wealthy or estranged.
Happy families? Life may not always work like that, but in a will children need to be treated fairly, regardless. Photo / Getty Images
Otago University law professor Nicola Peart, a family property law specialist, has warned our laws on property rights after death are ''underpinned by conflicting policies'' and are ''uncertain and unpredictable''.
Canterbury University associate professor John Caldwell, a family law specialist, believes it is time to look again at the Law Commission report of 1997 because the rationale for interfering with a will-maker's freedom is questionable today.
But for now, for right or wrong, cases such as that of the Enrights should be a reminder that challenges are fairly common. If wills are found wanting, courts are likely overrule them. Fairness and family should be front of mind when writing them.
