Rifts in families are common. But relationships can become especially strained when a person passes away.
Sometimes rifts are long-term family estrangements, but sometimes they arise unexpectedly and fast when a person dies, especially a parent: relationships can sour quickly. An example we often see: Dad passes away with a will, but he had remarried and there is a second family and the latter children/wife are appointed as Dad’s executors. The first family may become starved of information about the content of Dad’s will and/or what his assets are. Another is: Dad has remarried and while he has had no more children with his subsequent wife(s), his subsequent wife decides that as she is Dad’s executor, she doesn’t believe she has to share either his assets and/or any information about his will or his estate with his biological children, essentially frustrating and blocking his biological children from the probate process and information about his will and asset base. A further example is: Dad’s children are appointed as the executors of his will, but they unilaterally decide that his second wife must be immediately moved out of the property he shared with his second wife so it can be sold. These are all very difficult situations with complex legal problems, but which can be resolved. So where to from here?
Accessing a Will Prior to Death
Any starting point for the administration of a deceased person’s estate is their will and the grant of probate by the High Court which must take place in order for an executor to legally deal with a deceased person’s assets, including property, Kiwisaver funds, businesses, and bank accounts. While a willmaker is alive they have complete control over their will and choose who they want to share it with. The confidentiality of a will is protected by law and law firms who draft wills must keep them confidential unless the willmaker authorises disclosure. The only exception is where an attorney is acting under an enduring power of attorney for property. Here a copy of the will can be legally provided to the attorney to ensure the attorney does not inadvertently sell or dispose of assets that are specifically bequeathed in the will. Wills are not “read” in New Zealand, so contact is only made to named executors and beneficiaries. So what if you are not the executor or a named beneficiary? How do you find out the content of Dad’s will?
Obtaining the Will after Probate is Granted
Once probate is granted, the will becomes a public document and the grant of probate includes a copy of the will which anyone can view. You do not need to be a family member or a beneficiary to access it. An executor has the right to access the will immediately after the willmaker’s death. As access is crucial for the administration of the estate according to the deceased’s instructions, anyone holding the will must provide it immediately upon request. This resolves any issues where potential beneficiaries under a will are being starved of information about the content of a deceased person’s will.
Beneficiaries Rights
There is a presumption that executors must contact each beneficiary in a will and provide them with basic information about the estate and this usually happens before probate is granted. Beneficiaries have rights to details about the administration and assets of the estate and executors should provide this information upon request, especially in light of section 53 of the Trusts Act 2019. Most importantly, executors must act in the best interests of the beneficiaries and are expected to advise beneficiaries of their entitlement and an inventory and account of the estate. This must be provided on request within a reasonable time.
Executor Misconduct
Where there is suspected executor misconduct or circumstances requiring the removal of an executor, there are particular legal processes to follow. Executors have mandatory duties imposed on them under the Trusts Act 2019 to act honestly and in good faith for the benefit of the beneficiaries and to exercise their powers for a proper purpose. Executors are responsible for safeguarding the assets of the estate and are not allowed to use their position as executor to benefit personally from estate property by using estate assets for personal gain or profit, or selling assets to themselves for less than market value. They also cannot enter into transactions that put them in a position of conflict, for example, an executor benefits financially in their own personal capacity. Upon application to the High Court, the Court can remove executors who act improperly, fail to perform their lawful duties or do not act promptly. The Court will review each case to ascertain if the executor is properly administering the estate and whether the wishes of the will-maker are being given due consideration and respect. While hostility and incompatibly between executors and beneficiaries is not, in itself, a reason for the removal of an executor, hostility is indeed relevant when it risks prejudicing the interests of the beneficiaries. Further complications arise where the will creates a testamentary trust for a beneficiary and it is here that the role of executor ends and the role of trustee begins. Where executors live in estate-owned property, it will be necessary to seek Court orders for vacant possession and removal.
Need our help?
Feel free to connect with our local Raglan based team on phone (07) 2420751 or reach out via our website www.ginajansen.co.nz . Our friendly and bright Raglan team of legal superstars are dedicated to resolving your complex legal problems.
