Wills are governed by the Wills Act 2007. This partially replaced the Wills Act 1837, which was passed by the British Parliament and became New Zealand law.
Until the 1870s real estate belonging to a person who died intestate automatically passed to the eldest son (a practice known as primogeniture). This was abolished by laws passed in 1874 and 1879. People could still leave property to whomever they wanted in wills. From 1878 children born outside of marriage could claim support from their deceased father’s estate.
From 1900 husbands, wives and children could contest wills if they were not adequately provided for, under the Testator’s Family Maintenance Act. This law ensured dependants were not left destitute and dependent on state support. It was extended to cover children born outside of marriage (1936), parents in certain circumstances (1943), grandchildren, adopted children and adopted grandchildren (1947) and stepchildren (1955). From 2002 de facto (including same-sex) partners could contest wills, and (along with married couples and, from 2005, couples in civil unions) they were able to claim half the relationship property on their partner’s death.
During the debate on the Testator’s Family Maintenance Bill in the House of Representatives in 1900, some speakers recognised the contributions made to the family economy by wives and children and argued that this was why husbands and fathers had to make adequate provision for them in wills. One said that it was well known that ‘very often the wealth and property accumulated by the husband was not the result altogether of his own efforts, but was the result of the combined labour, brains, and penuriousness of the husband and wife.’1
In the 21st century challenges to wills were governed by the Family Protection Act 1955. If someone was promised a reward for services in a will, but the promise was not kept, they could contest the will under the Law Reform (Testamentary Promises) Act 1949.
Estate or death duties are taxes on inheritance and were introduced in New Zealand in 1866. This duty was abolished in 1992.
Management of estates
If executors are appointed in a will they look after the estate. Administrators (usually the person who will benefit most from the estate) are appointed by the court if there is no will. Executors are approved to act by the High Court in a grant of probate, while administrators are granted letters of administration.
Executors and administrators pay outstanding debts and taxes (using the estate’s assets) and distribute the residual assets according to the will. They organise the funeral if this is not done by family or friends. Lawyers and other professionals sometimes assist the executors and administrators.