Why you need a will and what happens when it’s challenged

Before Rosemary Riddell became a judge ruling on estate disputes, she almost created one herself.

Working as a young lawyer, she was instructed by her senior to rush to a nearby hospital so a dying man could sign his new will.

The law requires witnesses, so Riddell fetched a nearby cleaner who was happy to oblige. She returned to the firm only to find she needed two witnesses, not one.

"I nearly passed out on the spot, worried my man would die before I got back to him."

The race to the infirmary was on. Luckily Riddell made it in time, career intact.

It was a lesson that captured the finicky nature of estate law, an area Riddell would go on to oversee as a judge, ruling on hundreds of estate disputes between 2006 and 2018. Most were more complicated than a missing signature.

Frequent sisterly slanging matches, brotherly barneys and spousal spats became Riddell's bread and butter.

"Families would reach an impasse, things were hard, they were angry and they were bitter. To try and draw people on from that point was a challenge, but a part of the job I loved," she said.

While more recent figures are hard to come by, of the nearly 16,000 applications for probate in 2018 (the mandatory High Court application to verify wills post-death), 352 estate disputes arose in either the Family Court or High Court.

Each of the 352 cases represents a person who disputes the contents of the will or believes it was not written in accordance with the law.

As the size of estates grow with rising property values, and the great wealth transfer from the baby boomers to their children ratchets up, lawyers say having a sound will has never been more important. Knowing what you can challenge is important too.

"There's a lot to be said for having a will, without it you don't have a say in anything."

The moral duty to provide

When Graeme Barnard's mother Margaret died in 2019, he was taken aback at the contents of her will.

His mother's estate, worth more than $4 million, was divvied up, but not equally. While his two brothers pocketed a lump sum of $250,000, Graeme missed out. The remainder of the estate was split three ways.

Graeme's brothers walked away with their shares in full, but Graeme's was locked away and only the annual interest was his. That sum earning Graeme interest was not actually his either - that would go to his brothers upon his death.

His case was one of many that ended up in court in 2023, with Graeme claiming his mother did not adequately provide for him in her will.

The 'moral duty to provide' is a principle that is often at the centre of estate claims. While a will-maker has the freedom to choose who gets what, the Family Protection Act says there is a moral duty to provide for the "proper maintenance and support" of certain close family members.

If a spouse, partner or child lodges a claim on those grounds, a judge must assess whether what they have been given, if anything, is sufficient. The analysis is highly discretionary and also depends on the claimant's own wealth.

"You become a bit like a detective trying to peel back the layers of an onion," Riddell said.

"The judge's job is not to rewrite the will, but only to correct the deficiency in the will and the unfairness that has arisen."

In a hypothetical situation, Riddell thinks of Johnny, one of four siblings. His recently deceased father split his estate between three children, denying Johnny a share as they had not spoken in 10 years.

"Very often, the father didn't like the child, or the child did something he didn't like," Riddell said. "Sometimes, the view of the father might not be fair."

A good lawyer will have recorded notes outlining why the will-maker wanted the person in question excluded. This can help in the event Johnny claims the decision of his dad was unreasonable.

In Johnny's example, he would have a good chance at a successful claim as he ended up with nothing.

But in Graeme Barnard's case, the Court of Appeal ultimately ruled while the wishes in his mother's will could be seen as unfair, he was adequately provided for.

The assessment is never black and white. Riddell said one of the best ways to avoid a case even getting to court was to give all parties something, even if it was protected in a trust or was not an equal share.

Catherine Grogan, a partner at Taranaki law firm Govett Quilliam, said unequal divisions of an estate were not uncommon.

One strategy that could sometimes mitigate a court challenge was a handwritten letter from the will-maker, explaining their intentions to the person likely to raise concerns. Many law firms keep this letter with the will.

"The way case law is at the moment, if you exclude a child they've got a more than small chance of succeeding in a claim."

Grogan agreed with Riddell's advice - leave at least something. "Adequate provision is grey. I think it's good advice to tell people to provide something, rather than nothing at all."

Meanwhile, Riddell said there was "a lot to be said" for carrying out as many of your wishes as possible while you are alive; what you leave to people when you die can be challenged, but dishing out gifts while you are alive is a personal matter.

Grogan did caution against this due to the unpredictability of life (specifically how long you will be around) but said it could sometimes be a good idea as long as you are left with enough to survive on.

Where there's a will, there's many ways to challenge

When Paraparaumu's Bruce Sullivan died last year, his young neighbour was surprised to find all of his assets had been left to her.

With no family and few friends, Sullivan's old will had granted all of his assets to two old mates. It was not until his young neighbour began visiting him in the final years of his life that he decided to change his will just weeks before he died.

But the case became complicated after Sullivan's former friend, the beneficiary who was removed, challenged the new will in court. He claimed Sullivan was not of sound mind when he signed it.

It turned out Sullivan's new will came too late - a judge ruled his mental state had deteriorated too much to be considered sound mind when he signed.

But expert evidence submitted that when Sullivan detailed his instructions to the lawyer drafting the new will, he did have his wits about him. It left now deceased Sullivan without a will, but with a document of instructions of what he wanted done with his estate.

That was controversial in itself, with the lawyer who took the will instructions veering outside of best practice, failing to have Sullivan sign the instruction document.

Despite being critical of the failure, the High Court ruled the instruction document clearly outlined Sullivan's intentions and declared it his will.

The case proved a solid example of what can go wrong with wills, and the strict rules that surround how they are written.

Grogan, who leads the personal planning team at her firm, said it was always preferable to have your wishes overseen and written by a lawyer. She encouraged people to review their will every four years, or after a significant life event. By nature, some lawyers were better than others, she said.

"There are some small words that can make a huge difference, that might only be obvious if you're legally trained. It's very easy to change the direction by just a few words."

Jeremy Sutton, an Auckland-based estate and divorce lawyer, said the importance of a will could not be overstated.

"Having a will gives everyone certainty about what the testator will-maker wants. It is a much simpler process and avoids the survivors having to go to court to complete the formalities. It also reduces legal costs and time to distribute the estate."

In the event a dispute arose, around half were resolved during mediation, Sutton estimated, but that did not mean the cost of the dispute was avoided.

"My guess is that the success rate in either forum is at least 50 percent. Most claimants and those defending a claim don't want to end up in a court hearing against each other."

Estate disputes were becoming increasingly common, he said.

"As property prices have [increased], so have the value of claims."

Grogan agreed. "These baby boomers that have accumulated wealth have worked hard. There's an enormous amount of wealth that's about to be transferred to the next generation."

Memories from the bench

Riddell said that sometimes no matter what you do, disputes arise. Sometimes they might not be based on any solid legal footing, just sheer emotion.

"I used to think that custody battles brought out the worst in people, until I presided over a few will disputes."

One of her most memorable cases involved a man, who had died not unexpectedly, directing in his will that the family farm be sold.

His daughters were deeply unhappy with the plan, so one took matters into her own hands and let her goats reproduce and roam free around the farm. The case descended into an argument over the animals and the damage they had done.

"A lawyer went out to the farm one day and found goats climbing over his car. I saw pictures of goats everywhere, they'd done quite a lot of damage."

The dispute was not significant because of the legal arguments, nor Riddell's decision in the case. It was memorable because of the sheer oddness of it all, a reprieve from the frequent nastiness and anger she otherwise dealt with.

The case also showed that no matter how clear the testamentary intention may be, there was always the potential for a dispute.

Riddell, who wrote a book of her best stories from the bench, said the best way to prevent disputes was to spend it all before you die, or "spell out your reasoning so clearly that any challenge will shrivel up and die".

Her given example: "To son Jim, I leave my house. To daughter Dot, all my shares. To my friend Harry, my ride-on mower. To cousin Clyde, who always sat around and did nothing but wanted to be remembered in my will, I say 'Hi Clyde'."

- This story was first published by the NZ Herald