Submitted by admin on April 22, 2009 - 22:35
SUCCESSION, LAW OF
The law of succession concerns the distribution of a person's property on his death. In New Zealand and other advanced societies, property may be disposed of by will (testate succession) or in accordance with legal rules if the deceased leaves no will (intestate succession). Most primitive societies, too, recognise at least a limited power in the individual to dispose of his property. Maori history contains many incidents testifying to a person's right to hand on personal possessions to a chosen successor. Dying Maoris often indicated in a formal speech their wishes regarding the disposal of their property and their interests in tribal land.
The New Zealand law relating to wills is similar to that of England. Subject only to the law of family protection, a testator may leave all or any of his property to anyone he chooses. A will, except that of a serviceman or mariner in certain cases, must be in writing signed by the testator and signed or acknowledged by him in the presence of two witnesses, who must sign the will in his presence.
Before 1874 the rules in force in New Zealand governing intestate succession to real property (land) differed from those relating to other forms of property. These rules were complicated, but the principle was that land descended to the eldest son to the exclusion of others, while personal property was divided between the surviving spouse and all the children. Legislation in 1874 and 1879, anticipating English law by 50 years, brought the rules governing succession to land into line with those applicable to personal property – a step of some importance towards the democratisation of society.
The rules as to intestate succession were altered in 1944 and are now contained in the Administration Act of 1952. They may be stated in a simplified form as follows. A surviving spouse takes the personal chattels and £1,000. In addition, he or she takes one-third of the remainder of the estate if there is issue, two-thirds if there are surviving parents but no issue, and the whole if there are neither parents nor issue. If there is no surviving spouse the estate passes to the deceased's issue, that is, to his children who reach 21 or who have married as minors, with any children of a deceased child taking their parent's share. If the deceased leaves neither spouse nor issue, the estate goes to his parents, failing them to his brothers and sisters, failing them to his grandparents, and failing them to his uncles and aunts. The share of a deceased brother, sister, uncle, or aunt goes to his or her children, if any. Should none of these relatives survive the estate passes to the Crown.
Problems used to arise where two people died together and it was impossible to say who died first. In 1927 New Zealand adopted an English rule that the deaths were presumed to occur in order of age. This sometimes gave unjust results. For example, if a childless couple died together, the wife's parents usually took the husband's property. Accordingly, in 1958 a rule similar to that which prevails in the United States was introduced, under which each person so dying is presumed to survive the other for purposes of succession.
by Bruce James Cameron, B.A., LL.M., Legal Adviser, Department of Justice, Wellington.