By Hannah Bartlett, Open Justice reporter of 
Photo: 123rf
A mother failed in her "moral duty" after she left her two adult sons out of her will and instead left everything to her husband.
The sons became aware their stepfather had no intention of providing for them in his will either so they turned to the Family Court at Tauranga to dispute her final wishes.
According to the resulting decision, the mother and her husband had been together for nearly 30 years and married for almost 10 when she passed away after being diagnosed with dementia some years earlier.
It stated she and her husband had four children between them and she had a close and warm relationship with her two sons.
However, in her will, all her assets stayed with her husband and the men would only get a share if he died first.
What the husband said
The mother's husband told the court he and his wife had provided for her sons during their relationship.
He said it was only intended for them to benefit from the will if he died before her, and her primary duty was to him.
The man said his wife had enjoyed a "comfortable life" and was provided for generously, as he supported her "lavish lifestyle" which included getting her nails done, playing golf, regular visits to the hairdresser and money for clothes and facials.
He pointed to money given to the sons to help them travel to family events, for cars, and for improvements to their properties. He said this indicated he and their mother had already provided for them.
The sons' mother had not been attempting to avoid her "moral duty", he said, but rather she believed she had fulfilled this duty during her lifetime.
The husband said: "It is wrong for them to come back now asking for more."
Given the estate was minimal, if the sons were awarded a share it would leave him with "insufficient resources" to maintain a reasonable standard of living, he said.
The sons' claim
The sons' position was that they had a close relationship with their mother, were in regular contact with her, and gave her assistance.
She also enjoyed a close relationship with her grandchildren and they visited her when they could.
Their claim was not a "needs" based claim, rather there had been a lack of provision which was "improper and a breach of moral duty", they told the court.
They also sought an order for costs stating their mother's husband had not cooperated during the proceeding.
Both sons accepted there had been previous financial assistance from their mother, this included flights home from Britain, money towards a house deposit, and contributions to their respective weddings.
But the sons also said they had made contributions to their mother and her husband's property. They had cleaned windows, done gardening, and helped with plumbing and heavy lifting.
One had done work for the husband's company, which was usually unpaid.
What the judge decided
Judge Christina Cook said it was impossible to determine the extent of the contribution made by the couple to the woman's sons as it was in dispute.
But her overall impression was there was some financial assistance provided.
"However, there was also support which was provided by the boys for their mother and for [her husband]. I was struck by the level of animosity with which [the husband] viewed [the sons].
"I do not view this situation to be anything out of the ordinary in terms of a normal intact mother/stepfather relationship where there has been on occasions some financial support provided for special events which have occurred during the lifetime."
She also determined there was nothing to indicate the wills had been structured deliberately to reflect contributions to and during the marriage.
The judge said there was no evidence the couple had "applied their minds to the practical impact of the wills they entered into, in respect of their children".
Nor was there evidence that the couple had made "substantially unequal" financial distributions during their relationship.
On this basis, Judge Cook determined the sons had grounds to make a claim.
The husband provided limited evidence to assist the court in assessing their relationship property, and therefore the mother's estate, but the judge found it largely comprised an occupational right at a retirement village, a vehicle and chattels.
The judge put the relationship property pool of the couple at $497,734. The mother's estate was therefore half of that, at $244,876.
She said the sons should each get 20 percent of their mother's estate, which amounted to almost $49,000 each.
A decision about costs would be made at a later date.
The need for clear instructions
Barrister and family lawyer Jeremy Sutton said when there are multiple parties, and multiple lawyers, involved in a will dispute it can get expensive.
"When you've got a small estate, those legal fees can eat up a significant part of that estate, which I think would have been the case here," Sutton said.
People need to keep in mind, particularly with a blended family, that there should be clear instructions in the will, he said.
These should explain what they were doing and why they were doing it. This could be expressed as a file note, so it was clear why decisions about an estate had been made.
He said when making a will people need to consider not just their partner but their children and anyone else who might have a claim of moral duty.
"It's thinking of all those possibilities ... sometimes people might provide for a party in a modest way, give a party say 10 percent, and in doing that, a court will know they have turned their mind to that," Sutton said.
Where people came unstuck was when a party was not provided for at all in a will, and there was no explanation as to why that was.
- This story originally appeared in the New Zealand Herald.
