New Zealand's Succession Law: Subverting Reasonable Expectations

Abstract

Succession law in New Zealand has been widely criticized for many years as being incoherent and unprincipled both in regard to its approach to property entitlements for spouses and unmarried partners and in its liberal approach to support claims under the Family Protection Act 1955. Although testamentary freedom was said to apply in New Zealand, the reality was rather different. The Wills Act 1837 was also seen as unnecessarily defeating testamentary intentions. Based on research indicating strong support for testamentary freedom and widespread objections to testators' lack of autonomy, the New Zealand Law Commission recommended radically reforming the law to give better effect to testamentary wishes subject to limitations that were coherent, principled and in line with rights and duties during a testator's lifetime. Parliament largely ignored those recommendations. Between 2001 and 2007, it reformed several statutes affecting succession law, but it did so in piecemeal fashion. Succession law was not viewed holistically and fundamental concerns about ill-defined and unprincipled limits on testamentary freedom were not addressed. The reforms were driven by conflicting policies. While the new Wills Act 2007 is intended to give better effect to testamentary wishes, that aim is frustrated by the enhanced property entitlements of surviving spouses and unmarried partners provided by the Property (Relationships) Amendment Act 2001 and Parliament's failure to curb the liberal approach to support claims under the Family Protection Act. As a result, there is now a greater likelihood than before that testamentary wishes will be undermined and reasonable expectations of testators and their beneficiaries subverted.