Challenging a Will under the Family Protection Act

December 2024

The Family Protection Act 1955 permits close family members to bring a claim against an estate if they believe their deceased relative has failed to make adequate provision for their maintenance and support.

New Zealand law places significant importance on testamentary freedom, which is the principle that a person’s wishes about who should take from their estate (as recorded in their will) should be respected. The FPA places some restrictions on this freedom, but does not authorise the courts to completely rewrite the deceased’s will.

Who can bring a Family Protection claim?

Only certain relatives are entitled to bring a claim under the FPA. These include spouses, civil union partners and also de facto partners if the de facto relationship was continuing at the date of death. Children and grandchildren are also entitled to claim, the latter only if they were living at the date of the deceased’s death. In some circumstances, stepchildren and parents are also able to apply.

The “moral duty”

In assessing a claim, the courts will consider whether the deceased has breached their “moral duty” to make adequate provision for the maintenance and support of the claimant.

The nature and scope of the moral duty is not defined in the FPA. Instead, the courts have gradually refined their approach over the years and will usually take into account the following factors when considering whether there has been a breach of duty:

• The size of the estate.
• The existing provision (if any) for the claimant under the will.
• Any moral claims that other people may have against the deceased’s estate, including from people who are not themselves entitled to apply under the FPA.
• Any help that the claimant might previously have received from the deceased and also any contributions the claimant may have made to the estate.
• The claimant’s personal circumstances including their age, health, financial position, and whether they need to support other dependents.
• The claimant’s relationship with the deceased, including whether they have engaged in any conduct that should disentitle them from receiving any further provision from the deceased’s estate.
• Any other matters that the court considers to be relevant.

The courts try to assess these factors through the lens of what a wise and just, but not necessarily loving, will-maker would have done when preparing their will. This of course requires the judge hearing the claim to make some fairly difficult value judgments.

As a general principle, there is no presumption that children should receive equal shares of an estate, although grossly disparate treatment of children for seemingly no justifiable reason may be viewed as a breach of moral duty and be remedied accordingly by the courts.

Family recognition claims by adult children

The FPA is not restricted in its application to only those claimants who require support because they are in financial need, but can also extend to cases where the claimant has no particular hardship but has not been adequately recognised as a member of the deceased’s family. These “family recognition” claims most commonly arise where there is little to no provision for a child after a lengthy period of estrangement from their parent.

The law considers that the relationship between parent and child has primacy in our society. On that basis, the courts may order further provision for a child who is not in any particular financial need on the basis that it is necessary to recognise and acknowledge the child’s status as part of the deceased’s overall life and family. In such cases, the reasons for the estrangement, including in particular whether it was of the deceased’s making and any attempts to repair it before the deceased’s death, assume considerable importance.

How are awards under the FPA calculated?

As noted earlier, a finding that the deceased has breached their moral duty is not a licence for the court to fully rewrite their will. The courts take a conservative approach and will only award such further provision as is required to fix the breach (and no more than that).

There is no fixed formula or set of rules that is applied and the amount awarded will depend in particular on the size of the estate, the severity of the breach of moral duty and other competing moral claims.

The process

Claims under the FPA can be brought in either the Family Court or High Court, or in the Māori Land Court where the claim deals only with Māori freehold land.

Applications are supported by sworn affidavit evidence and served on the executors, beneficiaries and other persons who might have a formal interest in the claim. The executors are required to remain neutral on the application, but other parties can choose to oppose it.

Formal court proceedings are often preceded by attempts to negotiate an out-of-court settlement. Even when proceedings are filed, it is common for the court to direct that a judicial settlement conference take place between the interested parties, which is essentially a form of mediation conference convened by a Judge at the courthouse.

If the claim is not settled, a hearing will take place on the basis of the written evidence and the lawyers' legal submissions—it is relatively rare for parties to give oral evidence in court. Rights of appeal apply in respect of any decision made by the court to grant or deny the claim.

What timeframes apply?

Strict timeframes apply for bringing a claim. This is an area of law where claimants cannot afford to be slow in considering their options and exercising their rights.

As a general rule, an application under the FPA must be made within one year of the date of grant of probate or letters of administration, or two years when the application is made on behalf of a minor or person who is not of full mental capacity.

The law allows for extensions to be sought but only where the application for extension has been made before the estate has been finally distributed. Extensions are not granted by the court automatically even if they are filed in time.

Regardless of the general one-year timeframe for bringing a claim, it is important to move quickly if you are considering making a claim under the FPA because an executor may proceed to distribute the deceased’s estate after six months from the date of grant of probate if they have not received notice of a claim.

Need advice?

Contact our litigation team if you need advice in relation to a potential Family Protection Act claim.