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Changes for succession law afoot

2 June 2021
by Canterbury Legal

Succession law, which governs who your property might pass to upon your death, is likely up for some big changes.

That’s because the Law Commission has recently reviewed this area, and drafted a series of recommendations they plan to present to the Government. And those recommendations often end up in law.

The current law is spread amongst a number of sources and statutes, including:

  • wills
  • estate planning mechanisms, such as trusts
  • the Family Protection Act 1955, which allows some family members to claim against an estate
  • the Property (Relationships) Act 1976
  • the Administration Act 1969, which addresses situations where someone dies without a will
  • testamentary promises
  • constructive trusts

… and even more. The Commission proposes bringing some or all of these together under a new statute, which ought to simplify how things operate.

And as you might tell from some of the dates on those statutes, the existing law has been around for some time. Family arrangements have changed since then, and continue to evolve. Public perceptions of property and what’s fair have changed. So the Commission has proposed a number of other changes with this in mind.

  • Family Protection claims may only apply to a smaller group of familial claimants. Parents and grandchildren, who can currently make claims, would no longer be able to.
  • The way assets are distributed in intestate states (where there’s no will involved) would change.
  • Claims currently made in equity for contributions that have added value to an asset might be brought under a statute, and classified as Contribution Claims. Property owners could enter into contracting-out agreements to prevent these claims being brought against their estate.
  • The Courts could have powers to restore assets to estates that may have been put elsewhere as avoidance measures.

There may also be a separate regime created for Māori succession, recognising different principles under tikanga Māori.

The process is at an Issues Paper stage, which the Law Commission is seeking submissions on up until 10 June. The plan is to present final recommendations to the Government by the end of the year.

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