Family Protection Act 1955
When a person passes away, and leaves a close relative out of their will, the Family Protection Act allows that person to make a claim against the estate. The Family Protection Act is based on the concept that when a person dies, they have a “moral duty” to provide “proper maintenance and support” for certain members of their family, and if they breach that moral duty, the family member can make a claim for a larger share of the estate’s assets. The Family Protection Act gives the Court the discretion to amend the terms of the will where it is found that the deceased breached his or her “moral duty” to the family member bringing the claim.
Who can apply?
Section 3 of the Family Protection Act lists the people who can bring a claim against an estate:
- A spouse or civil union partner of the deceased
- A de facto partner who is living in a de facto relationship with the deceased at the date of his or her death
- The children of the deceased
- In some cases, the grandchildren of the deceased who were alive when the deceased died
- In some cases, the step-children of the deceased
- In some cases, the parents of the deceased
Relevant factors
There are a number of factors a Court looks at when determining the strength of a claim under the Family Protection Act, however these factors are not an exhaustive list, and the overall circumstances of each case will be relevant:
- The nature of the relationship with the deceased. If the claimant’s own conduct is “outrageous” or has caused long periods of estrangement, this disentitling conduct can result in the Court refusing to make an order in the claimant’s favour.
- Competing moral claims. The strength of a person’s claim will be dependent on the nature of their relationship with the deceased during the deceased’s lifetime. For example, a claim by a spouse or partner will usually take priority over claims by some other family members.
- Financial need: The financial position of the claimant will be considered, and their “need” for assistance will be a relevant factor.
- Size of the estate. The size of the estate is highly relevant, as a small estate may not have enough assets to satisfy all the claims that are brought.
- Contributions. The Court will consider what contributions the claimant has made to the deceased’s assets and the claimants contributions to the relationship.
How much will a claimant receive?
The first family protection laws were designed only to prevent claimants from becoming a burden on the State. The Family Protection Act and the case law that has come from it goes somewhat further than that. The Court in Williams v Aucutt stated that it is not the Court’s job to “re-write” the will, however the general trend is that in smaller to moderate sized estates, awards to claimants under the Family Protection Act can be based on a percentage of the estate. For example, a financially secure adult who has been left out of a parent’s will may expect to receive 10% to 20% of a modest estate. However, in the case of Carson v Lane, where Mr Carson died leaving an estate of $17 million and did not provide for his four adult children, the Court took the approach that a percentage-based award was not appropriate, and instead awarded to each of the children a sum of money that was adequate to meet that child’s need for property maintenance and support. This case shows that the Court will only amend a will to the minimum extent necessary.
Conclusion
Each claim is different and will be assessed by the Court depending on its specific circumstances, but taking into account a range of factors. Claimants only have 12 months from the date that Probate is granted in the deceased’s estate, so it is important for a claimant to take legal advice as soon as possible should they wish to challenge a will.
We would be very happy to talk to you if you have any questions regarding any of the above (and offer a free 30 minute consultation). For further information contact: Kathryn Jorgensen by email at kathryn@corelegal.co.nz
