Can Children Claim Deceased Stepparent’s Estate After Her Passing?

Question from Dave, Can Children Claim Deceased Stepparent’s Estate After Her Passing?

Answer from AI:

How the estate is treated when a beneficiary dies before probate

In New Zealand the distribution of a deceased person’s assets is governed by the Administration Act 1969 and the Probate Act 2005. A will is normally carried out exactly as the testator (the person who made the will) directed, but the law also provides rules for what happens when a named beneficiary dies before the estate is administered.

What happens to the wife’s share

The deceased left his estate to be split 50 % to his children and 50 % to his wife. Because the wife died before probate was finalised, she never actually received any of the assets. Under New Zealand law:

• If a beneficiary predeceases the estate’s administration, the gift fails (the “lapse” rule).
• The failed share does not pass to the beneficiary’s own estate unless the will expressly provides for it.
• Instead, the share reverts to the estate of the testator and is dealt with according to the terms of that will or, if the will is silent, under the rules of intestacy.

Therefore, the children’s potential claim is against their father’s estate, not directly against the wife’s (or “ex‑wife’s”) estate.

Can the children claim against the wife’s estate?

Generally, no. The children cannot make a claim on the wife’s estate simply because she died before receiving her portion of their father’s estate. The only ways the children could obtain anything from the wife’s estate are:

1. If the wife’s own will named the children as beneficiaries – then they would claim under her will, independent of their father’s estate.
2. If the wife held assets jointly with the children (e.g., joint tenancy) – those assets would pass automatically to the surviving joint owner(s).

Absent such circumstances, the wife’s estate is dealt with separately, and the children’s interest lies in the reverted share of their father’s estate.

What the children can do

1. Review the father’s will – see whether it contains a clause that addresses a beneficiary’s death before probate (e.g., a “fallback” provision naming alternate beneficiaries).
2. Apply for probate of the father’s estate – the executor will treat the wife’s share as part of the residuary estate and distribute it according to the will or, if the will is silent, under intestacy rules (which would typically give the children the entire estate).
3. Seek legal advice – an estate‑law solicitor can confirm whether any special provisions apply and can assist with the probate application.

Key points to remember

• The wife’s share reverts to the father’s estate, not to her own estate.
• The children’s claim is therefore against their father’s estate, not the wife’s.
• Only a specific provision in the wife’s will or joint ownership would give the children a right to her separate estate.

Where to find the relevant legislation

• Administration Act 1969 – outlines how estates are administered and what happens when a beneficiary predeceases the estate.
• Probate Act 2005 – governs the probate process and the duties of executors.

(Links: Administration Act 1969; Probate Act 2005)

If the situation is complex or there are disputes among potential heirs, it is advisable to consult a qualified New Zealand solicitor who specialises in succession law to obtain tailored advice.