When a will in New Zealand is not administered according to its terms, it raises a critical question: what happens next? The answer is that no automatic legal action is triggered and that the responsibility falls on beneficiaries, creditors, or co-executors to initiate corrective measures.
Understanding your rights as a beneficiary
As a named beneficiary in a will, you are legally entitled to receive what has been bequeathed to you in the will.
The executor of the estate is obliged to distribute the assets, including money, in accordance with the will’s terms.
However, if this doesn’t happen, you need to know what steps to take.
Identifying reasons for deviation from the will
Several factors may lead to the will not being followed:
- Estate debts: Debts and liabilities must be cleared first, which might affect the distribution if there are insufficient estate funds to pay all debts and gifts.
- Claims against the estate: All claims, including those from creditors or family members disputing the will, must be resolved before the estate can be distributed.
- Property already given away or sold: The deceased may have already given away or sold property that was supposed to be bequeathed, making it unavailable for distribution to the beneficiary. Read about what happens in this situation here.
- Delays in probate and waiting periods: Legal procedures like probate can delay the distribution process. Read about how long an executor has to settle an estate here.
- Executor mismanagement: If an executor fails to manage the estate effectively, it could result in a deviation from the will’s terms.
Proactive steps for beneficiaries
- Communicate with the executor: Initially, contact the executor for updates and request an inventory and account of the estate. There is a presumption that this information will be provided to beneficiaries upon request.
- Maintain records: Keep detailed records of all interactions related to the issue.
- Review estate documentation: Ensure you understand the specifics of the will and the estate’s financial status.
- Check probate status: Find out if probate has been granted by accessing the High Court’s public records. Learn how to do this here.
Seek legal advice: If your initial attempts to resolve the issue are unsuccessful, it’s crucial to seek legal advice. An estate law specialist can assist with:
Demanding distribution: A lawyer can formally demand the executor distributes your inheritance. A carefully crafted letter can often be enough to resolve the issue.
Understanding limitation periods: It’s important to know the limitation periods for legal actions to ensure you don’t lose your right to bring a claim.
Notifying recipients of wrongly distributed property: If property or assets to which you are entitled under the will have been distributed to others, your lawyer should notify them in writing and demand the return of the property to you. If the property is not returned, your lawyer can apply for a court order preventing the person holding the property from doing anything with it until your claim can be considered.
Caveating property: If your inheritance includes property, your lawyer can place a caveat on the title to prevent the property from being sold or money being borrowed against it.
Taking legal action: If there is non-cooperation or mismanagement by the executor, legal action to enforce your rights may be necessary.
Conclusion
If you are concerned that a will is not being followed in New Zealand, it’s essential to take informed and assertive steps. Start with direct communication with the executor and escalate to legal action if necessary. Understanding your rights and the legal framework is crucial to ensuring that your entitlements are protected and the deceased’s wishes are honoured.