Is it OK to cut the kids out of your will?

Published: 19 August 2020

The Succession team is currently researching and conducting preliminary engagement on issues with practitioners and experts.

Under the Family Protection Act 1955, all children are entitled to make a claim for provision from the estate if they believe they have not been properly recognised by their deceased parent. The acceptability of adult children pursuing such claims to inherit from their parents is the subject of enduring debate. Over the past decade, at least 93 claims of this type have been lodged.

As part of our Review of Succession Law, we are considering the merits of this entitlement. One crucial question arises: does it reflect the public attitudes and values of Aotearoa New Zealand in 2020?

Most parents who make a will choose to leave something to their children. This recognises the child’s place in the family and reinforces that bond. Understandably, it may cause a child of any age significant hurt if they are left out of the will.

On the other hand, not everyone sees family inheritance as a right. Some consider it unfair for a will-maker’s freedom to dispose of their property to be subject to challenge. Will-maker (or testamentary) freedom is often viewed as paramount and many believe it should not be eroded by the demands of adult children, particularly those who are financially independent.

Since individual attitudes to succession are so important, we are pleased to be involved in the preparation of a nationwide survey on public attitudes to claims in succession led by the University of Otago. The work is supported by the Michael and Suzanne Borrin Foundation. The survey is due to be completed in early 2021.

We intend to present these issues, the results of the public attitudes survey and some reform proposals in a Consultation Paper to be released in April 2021.