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Chris The Lawyer
Chris The Lawyer, Lawyer
Category: New Zealand Law
Satisfied Customers: 22163
Experience:  37 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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11 years ago our mother died. She and our step father had

Customer Question

11 years ago our mother died. She and our step father had joint - corresponding wills agreeing on the distribution of their property upon the deaths of each other; they had been married for over 25 years. Less than year after our mother died, our step father remarried and changed his will. He died 9 years ago - they had been married for approximately one year.

Our step father left our mother's (agreed) 1/3 share of the asset to my sister and - I but the distribution was different to how our mother willed her one third (which was 1 third to grandchildren and 2/3's between my sister and I).

However he left the property in a trust with his children as the trustees of the will - and gave his new wife the use of the property for as long she wanted to live in it or to go into a retirement home (life time use of asset). In our mothers will the trustees were to be one of his children and one of hers. Our stepfather will did not have trustees if he was the living spouse.

$10,000 was left in the trust account for one year for maintenance and this was used to fix the roof and she was responsible for maintenance after that point.

There was an extra $21,000 in the trust which the trustees distributed on 2005. My sister and I were given one 1/3 of the sum and we distributed in accordance with our mother's will.

We were told that because our stepfather had negotiated a joint will with our mother he was not able to change the terms of the will for our share after our mother’s death, but we felt it was disrespectful to our step father to challenge his will.

Since the expenditure of the $10,000 it appears the new wife has not maintained the property. The Trustees have requested that my sister and I pay 1/3 the cost of painting the house and if we don’t pay our contribution we will be charged interest on our share of the cost until the property is sold (they think in about 15 years-time) and there is likely to be further expenses in the future.

We don’t think the will is valid - we don't think the trust is fair either, and the new wife is not adhering to the agreement. WHAT CAN WE DO??

We do not have a copy of the trust deed because we are only beneficiaries. ARE WE ENTITLED TO HAVE A COPY???

Also do we have any recourse against the lawyer or law firm that knowing redid our step father's will knowing that he had an obligation to our mother's beneficiaries and her will?

We estimate the total property is worth about $600,000 to $700,000 – making or contribution about $200,000.
Submitted: 3 years ago.
Category: New Zealand Law
Expert:  Chris The Lawyer replied 3 years ago.

christhelawyer : HiWelcome to JustAnswer. My first response will follow shortly. Please feel free to follow up if anything is not clear
christhelawyer : You need to look at your one third interest as an investment, which will increase in value, although like any property, there are those maintenance costs.
christhelawyer : if you wanted to contest the actions of the lawyer in drafting the will, you would need to do so within 6 years of his death. If you are in time, you would need to show that the lawyer had been negligent in following his clients instructions. But your stepfather is the one who made the choices, and like it or not he is the one who has caused the problem.
JACUSTOMER-fg4gds6g- :

You have not answered the questions

christhelawyer : I am sorry, but the site crashed, and most of my answer was lost. Do you want me to continue? I am happy to re insert the answers
christhelawyer : theanswers the initial problem is that there are strict time limits for contesting a will. I realise why you were reluctant to do so, but the Family Protection Act prescribes a 12 month limitation period after probate has been granted.
christhelawyer : Once this time has elapsed it is not possible to contest the will.
christhelawyer : If you think your stepfather changed the will despite what is called a testamentary promise, the same time limit applies.

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