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The Family Protection Act 1955 “the Act” is a unique part of New Zealand law which provides the Court with a wide discretionary power to make awards to relatives of the deceased who were not adequately provided for under their will. This power enables the Court to set aside the will-makers express wishes as to the provision made to the claimant and assess whether that provision is adequate for the proper maintenance and support of the claimant. The Act recognizes the will-makers duty to provide for certain people from their estate.

So, what should a will-maker know about this Act?

Who can make a claim on an Estate?:

People who are entitled to make a claim is restricted to the category of close family members, specifically:
• The spouse, civil union partner or de facto partner of the deceased;
• The children of the deceased;
• The grandchildren of the deceased;
• Stepchildren (in some circumstances – they must be dependent at the date of death);
• Parents of the deceased (in some circumstances)¹

What Factors Affect a Claim?:

The standard for assessing the provision in the will is whether the deceased was wise and just in the provisions of the will and took relevant circumstances into account when making a provision for the claimant. Some of the factors the Court will consider are:

1. Financial Position of the Claimant:
   This is generally assessed by analyzing the assets, income and earning potential of the claimant. It is a significant factor contributing to the determination of proper maintenance and support. For example the moral duty to a well off adult child is much more limited than the duty to a child who is in financial hardship.
2. Estate Size:
   The pool of the deceased’s assets is an important consideration for any claim. There is no single amount which is considered adequate in all circumstances. If the deceased has a large pool of assets, they are more likely to be in the position to satisfy their moral duty to the claimants while maintaining substantial funds for them to assign as they see fit. In a small estate the need to provide for a spouse or partner may mean there is nothing left to provide for an adult child.
3. Strength of Moral Claim:
   Not all claims are of equal strength, there is a paramount duty on the deceased to adequately provide for their spouse or de facto partner in their will. Grandchildren will only usually be able to make out a claim if their parent has pre-deceased the will maker or there are other special circumstances. Claims by adult children who are not in need are possible but the awards are often reasonably limited
4. Estrangement
   The relationship between the claimant and the deceased will be considered by the Court. If there was long-term estrangement, then the moral duty of the deceased to provide may be reduced. The basis of the estrangement will be central to this assessment, in particular who caused the estrangement and its length. If reconciliation occurs between the parties before the deceased death, then this may also be factored into a will which was executed when the parties were estranged.
5. Serious Misconduct
   The Court is empowered by the Act to reduce or refuse to make an order in favour of a claimant who has behaved in a manner which disentitles them from the benefit of such and order.²

The Act empowers the Court with wide discretion to make awards in favour of an eligible claimant for inadequate provision by the deceased. The orders need not be of a specific amount, or in a specific form (they can form lump sum payments or periodical payments). Behind this flexibility is the recognition that New Zealand families come in many different forms. To cater as much as possible this area of law is complex and nuanced, just like the families it operates for.

While the power of the Court to make awards is significant, the Court is disinclined to completely disregard the testamentary wishes of the deceased. This highlights the importance of giving clear and complete instruction to your lawyer when they are drafting your will. Your lawyer may ask questions regarding the reasons for giving certain gifts, not because they are nosey, but because they will be considering the provisions within your will in light of the powers under the Act.

If you think it may be time to update your will, or you wish to seek legal advice regarding the possibility of a Family Protection Act claim, please speak to your trusted legal advisor.

¹ Family Protection Act 1955, s 3

² Family Protection Act 1955, s 5(1)