Where there's a will there's a way to change it

Brian Naylor was the sort of person who knew exactly what he was doing, and why.

Beloved of Australians due to decades as a major network news anchor, he updated his will six months before he and his wife Moiree died in the February fires that swept their Kinglake property near Melbourne.

Naylor thought he'd taken care of affairs. Little did he know that a judge would have the final say about who gets his money after he's gone.

And, little might we know, judges in New Zealand are ready, able and willing to fiddle with wills in the name of "fairness".

In Naylor's case, he expressly excluded his estranged son Greg from benefiting from his A$20 million (NZ$24.6 million) estate believing he'd given him enough and had suffered enough through his son's actions during his life. His will stated: "[Greg] has during my lifetime received considerable benefit from me and my associated entities, and his actions have caused me substantial emotional and financial costs."

Naylor had made provision for his grandchildren and you might think Greg, at 54, was long past the age where he should be expected to stand on his own feet.

Furthermore, Greg had bitterly fought his father in court in 2003 over a TV production company and the pair had barely spoken since.

Closed case? In fact it is just beginning and odds are that a judge will award the family's black sheep more than his father thought fair or just.

Researchers found that in only five of 45 major reported Australian

cases, where wills leaving money to charities were challenged by relatives, did the judge let the will stand as the deceased intended.

Had the Naylors lived here, the son would stand an equally good chance of overturning his father's will. New Zealand pioneered the laws that Australia has followed, introducing in 1900 the concept of family provision, the idea that deceased parents provide for needy children. No will could since be regarded as the last word.

The idea back then was to ensure that poor dependants of the dead did not become a burden on the state. But courts here and in Australia have steadily broadened the law, sometimes haphazardly.

It's now held that parents have a moral duty in death to provide for even adult children (adult children bring 90 per cent of New Zealand contested will cases). Even when the adult child is estranged. Even when the adult child is wealthy.

In the 2000 case, Williams v Aucett, the amount a mother left her grown-up, married, wealthy daughter, was doubled even though the daughter's assets were greater than the mother's.

It's no isolated case. Wills have been similarly overridden where the offspring was much richer than the parent.

"We are not here talking about providing for financial need" says Otago University law professor Nicola Peart, a family property law specialist. "There is quite clearly a sense [among the judiciary] that as a parent you ought to recognise the importance of your child to your life and that is in some way deserving of financial recognition."

The problem is that the expansive view taken by New Zealand and Australian courts is, to quote Peart, "based on this nebulous concept called moral duty".

"Frankly, whatever is said [about it], you will find as many who will say something different."

Why would a judge be better able to define a moral duty than you or I ? The short answer is they can't.

"The great irony is that, of the cases that go on to appeal, a great many of them are overturned," says Peart.

One case got four different decisions, as it went from the Family Court to the High Court to the Court of Appeal and back to the Family Court.

The Law Commission said a decade ago that succession law was in need of root and branch reform. Instead, Parliament has tweaked here and there and, in a 2007 case, the Court of Appeal has confirmed the concept of moral duty.

The Law Commission recommended that children could claim for support only if they were under 20 or under 25 and still studying or unable due to disability to earn an independent living.

It cited research showing that though most people wanted to pass assets on to family members they also valued their freedom to decide - findings supported by a 2006 survey which indicated 60 per cent of people believe a parent does not have a duty to pass on wealth to their children, and only 21 per cent think children have a right to expect an inheritance.

Despite one of its judges describing the Law Commission's report as "extreme", the Court of Appeal has accepted that some judgements had been out of whack.

In recent cases it has set more conservative guidelines of about 10 per cent of the estate for psychological support, the idea that the child "belonged to the family" and had been "an important part of the overall life of the deceased."

Where claims are based on both family recognition and financial maintenance, the benchmark figure rises to about 20 per cent.

Family law specialist John Caldwell thinks it's time to look again at the Law Commission report of 1997 because the rationale for interfering with a will-maker's freedom is questionable in today's social climate.

Statute law imposes fetters where the exercise of powers by one person might hurt another.

But, says Caldwell, an associate professor at Canterbury University's law school, it is a challenge to identify the source and nature of any harm done to the financially independent adult child.

And, why shouldn't a parent on their death be as free to dispose of property away from that child as they were at any time prior to their death?

With such piecemeal laws, so many unanswered questions and so few clear rules, lawyers struggle to advise will-makers, or those wanting to challenge them, of the likely outcome. But with decisions based on a judge's inclination, claimants are encouraged to try their luck in court.

Who wins? Often the claimants, always the lawyers.

When the new Wills Act became law here in 2007, a parliamentarian commented that its great advantage would be less work for lawyers.

Because of the failure to address the laws around death in a coherent way, says Peart, the opposite is the case.