Laws must change to better accommodate stepfamilies who try to share property fairly after someone dies, according to the Law Commission.
The commission worked on a report on inheritance law.
It follows its review which recommended changes to the relationship property law, as the committee wants issues in both areas to be addressed together.
His report was presented to Parliament on Wednesday.
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The commission found that the current law was old, obsolete and inaccessible.
He said new law was needed to keep up with social change and better reflect contemporary understanding of te Tiriti o Waitangi.
The committee wants a new law on inheritance to be the main source of law on inheritance rights and claims.
He wants the rights of surviving partners to share the property of the relationship to continue, but the legal test to be clarified when family members can claim more than what a will says.
He recommends that a surviving partner be able to access at least the same share of the property of the relationship that they would have if the couple had separated.
The commission recommended two options for complaints from adult children who are unhappy with the wishes of a parent. The first was for any child to be able to ask whether they felt that the will had wrongly failed to provide for, or recognize, a needy child or grandchild. The second option was to limit claims to those under 25 or people with disabilities.
He also called for new rules in situations where a person has died without a will.
Currently, if someone dies with a partner but without parents or children, the spouse gets the entire estate. But if there are children, the partner gets personal effects, $ 155,000 and a third of what is left. The children share the remaining two-thirds.
If the person has a spouse and parents, the spouse receives personal effects, $ 155,000 (with interest from the date of death) and two-thirds of whatever is left. Parents receive the remaining third.
Rather, the commission said the estate should be divided into fixed portions among family members. The partner should take the entire estate when the affected children were born out of the current relationship. If there were other children involved in previous relationships, the surviving partner should receive the family assets, half of the estate, and the children should receive the other half.
He also wants the Maori tikanga to determine the succession to the taonga, allow a court to recover property when it has passed to a third party in a way that leaves the estate unable to meet its demands, and support an effective settlement and efficient of disputes.
Senior Commissioner Helen McQueen said the commission suggested a clawback provision because it was unsatisfactory to have the capacity to claim an estate if it was possible for the person making the will to ensure that there was nothing in it, maybe using a trust.
“We have suggested that the court should have the power, when it comes to making an award, to reinstate certain assets in the estate.”
The review also recommends that the law be amended to recognize children for whom the person has sustained parenting, including stepchildren and tamariki whāngai.
McQueen said existing laws are fundamentally outdated.
“Much of the law dates from the turn of the last century. The variety of family formation in New Zealand is a little different today than it was in the early part of the 20th century. The second thing is our understanding of what the Treaty of Waitangi means. “
She said there had been strong opinions in the comments received from the public. Some people strongly believed that once they made a will, a court should not be able to change it. Others believed that it should be possible to change a will if it was unfair.
She said the committee wanted the law on challenging a will to be clearer.
He also wanted more clarity on how people can “get around” normal rules and make their own arrangements, such as in situations where people entering new relationships wanted to make sure their children were taken care of. ‘a certain way.
“The law on who obtains a person’s property upon death is an important law that affects all New Zealanders. It should balance the deceased’s mana, property rights and obligations to family and whānau, promoting positive outcomes for families, whānau and society at large. When a person dies, a grieving family should be able to refer to a clear and accessible law that facilitates the resolution of any dispute.
The government will now consider both this review and the relational property review, and determine whether it wishes to reform the law.