Watch out for the ‘catch-all’ clause in your Will by Roslyn Morshead, of Rotorua’s Morshead Law

We don’t often think about our Wills, but if you do have a Will, you should check it for a ‘catch-all’ thing called a “residuary” or “remainder” clause. The legal job of the residuary clause is that after you have specified to whom you want to leave certain assets, gifts and property, the residuary clause usually says something like “I give the remainder of my estate to (for example) Billy-Jo and John…”. What this potentially means is that if you have assets/property that you haven’t specifically bequeathed then our example people, Billy-Jo and John, would inherit any remaining assets/property left after the other estate bequests have been made.

The gnarly effect of a residuary clause cropped up recently when I was asked to act in the disputed estate of a deceased person who held various Maori Land interests that had been overlooked, and were not bequeathed when they made their Will (through no fault of the deceased, I might add!). The residuary clause unfortunately left everything remaining, which captured the deceased’s Maori Land interests, to two named grandchildren. The effect of this was that all the deceased’s adult children and their future generations automatically lost the land interests forever. The result?

The Maori Land Court had no jurisdiction over this particular Will as the grandchildren were legally entitled to take under the provisions of Te Ture Whenua, and chose to do so. So the only other option in this particular case was to take it through another Court. But this scenario could equally apply in lots of other estate situations such as where there may be a second house property, insurance policies, or other assets, so your residuary clause is very important and it needs to be right.

Any Will dispute very often means a long, expensive and stressful legal battle or court proceeding. Whether or not matters are resolved by agreement or settled through court proceedings, the whole issue can sadly sometimes divide individuals and families forever.

You should always obtain your own advice about any Will or estate matters, and I strongly recommend that you review and update your Will (if necessary) every 3-5 years as a minimum.