A tale of two families: apologies to Charles Dickens

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Jack London married Elizabeth. They had a happy marriage, which produced three children. Their eldest child Richard became a highly successful health professional. Their second son Henry suffered a number of dependencies, had a broken marriage and was never likely to own his own home. Henry had one daughter, Mary, who provided Jack and Elizabeth with much delight. Catherine was their third child. Tragically, Elizabeth died of a rare form of cancer in early 2005.

 

Charlotte Paris married Pierre. They had a happy marriage, which produced three children. Jacques was the eldest, followed by Thierry. Cosette was the youngest, who lived a relatively bohemian lifestyle with her partner Anton. Pierre was a keen surfer. Sadly, he drowned in 2005.

 

Jack and Charlotte had been primary school friends, whose paths had diverged during secondary school. Jack and Charlotte reunited at a school reunion in 2006. They married on 14 July 2007. Their marriage was happy. Prudently, Jack and Charlotte entered into a prenuptial agreement prior to their marriage. At the same time they signed wills which provided life interests to the survivor for various assets and distributions to each of the respective children. Their executors were Jack’s younger sister Anne and Charlotte’s younger brother Charles, who were both instrumental in ensuring these documents were completed.

 

Over the years Jack and Charlotte amassed a considerable residential property portfolio in Auckland as a result of their prudence, taking some risks and minimising costs. Their prenuptial agreement stated that any assets purchased in the future in their respective names would be their separate property unless the assets were held in their joint name. To minimise cost, Jack and Charlotte never sought the advice of the family solicitor who drew up the prenuptial agreement and wills in 2007 as to structuring of ownership of the residential properties. At the point of almost going unconditional on each purchase, they rang a number of law firms for estimates on costs and instructed the least expensive on each occasion. Ownership of each property generally depended on who was available to attend the lawyer’s office to sign the documents, or sometimes, in accordance of their understanding of how to balance their respective incomes and tax losses. Therefore there was no consistency of advice, and most probably little interest by the service providers in doing any more than the “simple conveyance”. Jack and Charlotte filed their own tax returns.

 

In early 2017 Jack and Charlotte became aware that the ownership of the assets was not consistent with their original intentions. Irrespective of the quantum of their individual employment income over the years, they considered that they had contributed equally towards the property portfolio. Jack did not want any of his hard earned capital to in any way go to Cosette or Anton. Charlotte struggled with Richard’s arrogant manner, particularly towards his siblings and to a lesser extent to Jack and herself. She did not want Richard to receive “an extra cent to what he was entitled” from either her or Jack. Both Jack and Charlotte agreed that they would want to minimise any payments directly to Henry, but provide for Mary.

 

Being self-sufficient, Jack and Charlotte drafted a list of how they would like their respective estates to be divided after the death of the survivor. They then tried to contact their family solicitor, who was a sole practitioner based in the city. In the meantime he had passed away and his practice had been taken over by a large legal firm. That firm looked too expensive to Jack and Charlotte. At that time a local conveyancing shop was advertising a free wills week. Too good to be true for Jack and Charlotte. When Charlotte contacted the firm by telephone, she proudly advised the receptionist that she and her husband had already drafted some instructions. The receptionist congratulated her on the initiative and suggested that she email instructions to the firm for one of their staff to then draft the wills and forward to them for their consideration. To Jack and Charlotte’s delight, they received the draft wills by email within the week, with the request that they consider the drafts, respond with their comments, upon which the law firm would redraft the wills and arrange for signature. Jack and Charlotte could not believe how good this law firm was at drafting wills. The first draft correctly reflected their expectations. True to their character, they printed the wills, undertook an Internet search to ascertain how wills should be correctly signed, had the wills correctly signed, placed the wills in their study and went to their bach for the weekend. Tragically, on the way home on Sunday night they were involved in a multiple car collision and both died at the scene.

 

Richard was the first to go through the study and locate the wills. Although the fact that he was not appointed an executor of his father’s will and that he received less than what he considered was his fair share of this father’s estate (and he knew exactly the details of Jack and Charlotte’s property portfolio), he was determined to more or less follow his father’s wishes. He took the wills to his law firm. He then advised Anne and Charles that he had located the most recent wills, that Anne and Charles were the executors and that his law firm would be acting on behalf of the estate. Needless to say, there were some very disappointed children. Anne and Charles were not impressed that they now had the responsibility of administering two estates whose beneficiaries belonged to a dysfunctional blended family and in particular that it appeared that Jack and Charlotte had not obtained competent legal advice on a complex set of circumstances. Each of the children sought independent legal advice. Due to the nature of their personalities, a compromise settlement could not be obtained. Expensive and protracted litigation followed for a number of years. All diminishing the real benefit that each child expected to receive.

 

While the story is fictional regarding the individuals, the attitudes, personalities and family dynamics are far from uncommon. Regularly these cases come before the courts and are often reported. In February of this year the Court of Appeal handed down a decision which covered one of the aspects in this scenario, that is when a new will has a significant divergence from an existing will.

 

Will makers have certain statutory obligations to provide for members of their direct family. If they wish not to meet those obligations for good reasons, or if how they meet their obligations is not conventional, it is imperative that the will makers obtain competent legal advice and that the reasons for the divergence from the conventional are set out to assist a court which may be requested to look into the process of making the will.

 

The heading to this article refers obliquely to one of Charles Dickens better known novels. Dickens also wrote another novel “Bleak House” in the early eighteen fifties. It is set around a dispute over the Jarndyce estate. Sad to say, without competent legal advice, things have not changed! Please come in and see us for advice on your will – we want to ensure you have as much certainty as possible that your wishes would be carried out.

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Michael Hockly
Partner

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