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Chris The Lawyer
Chris The Lawyer, Lawyer
Category: New Zealand Law
Satisfied Customers: 18879
Experience:  32 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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Can you leave someone out of your will? Example - bad relationship

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Can you leave someone out of your will? Example - bad relationship that ended up with 3 children. Separated and tried being part of children's lives, but mother would deny access, take children away whenever I organized a visit, or threatened by her new boyfriend (later husband) to leave alone or physical harm would happen. Damage was done to a vehicle at a funeral 10 years later and gang members visited my flat at the time and upheld the threat.

Now 30 years passed with little to no contact. Children had last name changed without my signature and only contacted twice over the years, where I reacted and tried to approach etc, but the two children I met had been well 'warped' by their mother and weren't interested in getting to know me or followed up with any further contact.

When I was tossed out of the house, my belongings were left behind, tools, vehicle and all input into a house over 10+ years of finances, mortgage payments etc. I claimed for nothing, wanting the children to have a house to grow up in and had to start life again with the clothes I was standing up in.

I had to start life again and moved away but have always been in phone book etc for contact if the other children ever needed me, but no further contact. I meanwhile had to pay WINZ support for the children, so had a debt out of every payslip.

I now have another life, one other child and a safe normal relationship who helped me start my life from scratch and worked hard with me to rebuild a life.

How can I keep my now partner and child secure with the hard work and assets I have now managed to put together with their help, and make sure that the other children can't make a claim when they haven't wanted any contact and when they have the assets that were left behind in the other property and work I had done on that property to raise its value over the years I was there and paying for it.
Submitted: 1 year ago.
Category: New Zealand Law
Expert:  Chris The Lawyer replied 1 year ago.

Chris The Lawyer : Hi and welcome. My first response will follow shortly. Please feel free to follow up if anything is not clear.
Chris The Lawyer : the best way to ensure they have no claim is to settle your home and assets into a family trust. this means your estate will be only small when you die, and the family trust and your trustees can provide for your new family, under any directions you give. This would mean your estranged family would have no chance of getting anything from you.
Customer:

Don't know much about trusts, but what I do hear makes me nervous of them. Was hoping just something in a Will would be enough. Is there any other way, rather than the Trust option?

Customer:

Any suggestions

Chris The Lawyer : it is hard to protect an estate from a claim under the Family Protection Act, because the courts take a very liberal approach to moral duty. You certainly can state in your will why they have been excluded, but that is not 100% guaranteed to prevent a claim.
Chris The Lawyer : I realise trusts are a bit different from what you are used to, but that would definitely protect your assets from claims.
Customer:

Under Trusts though, you can't get a mortgage (from what I was told) or others are involved with decisions to do with the property, so Your property isn't really Yours anymore?

Chris The Lawyer : Their claims under your will may not be much in the end, and here may only be something like 20 to 30% at the very most,, but it is often the stress of dealing with the claims. You certainly can get a mortgage for trust property, although you personally guarantee the loans. That is no different from owning the property though. You are right that the trust does then own the property, and there is less control. But the purpose of the trust is to provide a home for you and your family, and to protect your assets, so usually it is you and your partner who are the trustees, and you make the decisions about the property anyway.
Chris The Lawyer : But you can certainly use the will option and exclude them, but accept some risk they may have a claim. It is hard to avoid under the Act
Customer:

OK, sounds like a road we might have to go down and check out.

Chris The Lawyer : There is unfortunately some expense of course but that means you don't have to worry about the claims
Customer:

Was stressful last time with a Will, due to a lawyer obviously in the throws of a divorce and she was very anti my stance and reasons why I feel the children have claims under the other property. Don't want to have to go through that again and I refused to sign the Will and walked out due to her attitude, so Will is now very old and completely out of date with my daughter now turning 30 this year.

Chris The Lawyer : In my view, find a better lawyer and get this done. You can get a new will fairly quickly, and then start on the trust. Then you would have a belts and braces approach to protection.
Chris The Lawyer : its not up to the lawyer to tell you how you should leave your estate
Customer:

Expect some expense, and not like I have major money or property now but what I have, is what has been built up with a hard working partner who pushed to get the best from me and make a new life and she and my daughter deserve to gain from that and not have it stolen away. If I die first and in my Will it is gifted to my partner does that mean no claim from other children and it goes all to her.

Customer:

Thanks for the advice on above, makes sense. Will first and Trust to follow, at least you work out an idea of your lawyer and where they stand as well.

Chris The Lawyer : Yes, if you die first the house will pass to your partner anyway and she will leave this to your daughter I expect. That would solve the problem, especially if the house is held as joint tenants. Then it passes by survivorship to her. The need for protection arises if she were to die first, as then you would own the house, and when you die, the claims could be made. This is a lot of legal information I realise and I hope this is clear.
Customer:

Yes, wonderful and will click Excellent Service when finished. Just one more question. If partner died and I was left, can I sell my property to my daughter for minimal sum? Ie give it all to her that way?

Chris The Lawyer : You can do this, and gift duty has been abolished so there is no tax. But if there is a possibility you need to go into care, then the Department of Health will, if this happened in the 5 years before you went into care, be able to place a charge on the property for the fees. Just something to be aware of.
Customer:

Ah, hadn't thought about that one. Thanks for the advice. Much appreciated.

Chris The Lawyer : That also applies to a house placed in trust. You can escape family but not always taxes and government charges.
Customer:

Isn't that always the case!! Blast!!!

Customer:

Interesting to know applies in Trust as well, will have to have a good think on all this and turn it over with partner and see what happens. Thanks again.

Chris The Lawyer, Lawyer
Category: New Zealand Law
Satisfied Customers: 18879
Experience: 32 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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