Law Commission recommends new law about who inherits property when someone dies

Published: 15 December 2021

Succession law, the law about who inherits a person’s property when they die, needs reform, concludes Te Aka Matua o te Ture | Law Commission in its report He arotake I te āheinga ki ngā rawa a te tangata ka mate ana | Review of succession law: rights to a person’s property on death, presented to Parliament today.

Much of current succession law is old, out of date and inaccessible.  The Commission has concluded that new law is needed to keep up with social change and meet New Zealanders’ reasonable expectations.  The Commission has recommended changes to the law to better reflect the diversity of family relationships in Aotearoa New Zealand and contemporary understandings of te Tiriti o Waitangi | Treaty of Waitangi.

Helen McQueen, lead Commissioner on the review, said:

“The law relating to who gets a person’s property when they die is important law that affects all New Zealanders. It should balance the mana of the deceased, property rights and obligations to family and whānau, promoting positive outcomes for families, whānau and wider society. When someone dies, a grieving family or whānau should be able to refer to clear, accessible law that facilitates the resolution of any disputes. We think the Commission’s recommendations will make law better suited to contemporary Aotearoa New Zealand, reflecting the increased diversity of New Zealand families and te ao Māori perspectives.”

The Commission’s recommendations include:

  • introducing a new Inheritance (Claims Against Estates) Act to be the principal source of law regarding entitlements to and claims against estates;
  • continuing surviving partners’ rights to a division of relationship property when their partner dies;
  • revising the rules for how estates should be distributed when a person dies without a will (intestacy rules);
  • clarifying the legal test for when certain family members can claim further property from an estate despite what the will or the intestacy rules say;
  • providing that tikanga Māori should determine succession to taonga;
  • enabling a court to recover property when it has passed from the deceased to a third party in a way that leaves the estate without sufficient property to meet awards made against it; and
  • supporting efficient and effective dispute resolution both in and out of court.

In recognition of te Tiriti o Waitangi and tikanga Māori as an independent source of rights and obligations, the Commission has sought to weave new state succession law that reflects tikanga Māori and other values shared by New Zealanders. The Commission has also concluded that this approach requires state law to recognise that succession to taonga should continue to be governed by tikanga Māori.

This report concludes a significant body of reform work by the Commission regarding New Zealand’s family property law. The review of succession law has followed the Commission’s review of the property division rules under the Property (Relationships) Act 1976 for when couples separate.

The Government will now consider the Commission’s recommendations in both reports and decide whether to reform the law.

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