Claims against a Deceased Estate

The Family Protection Act 1955 (“the Act”) enables people to make a claim against the estate of a family member whom they believe should have made provision for them in their Will by virtue of the family connection, but have not done so.

Who can claim?

The persons who may bring a claim under the Act are as follows:

• The spouse or civil union partner of the deceased.
• A de facto partner provided he or she was living in a defacto relationship with the deceased at the date of his or her death. 
• The children of the deceased.
• The grandchildren of the deceased. 
• The stepchildren of the deceased who were being maintained either partly or wholly by the deceased immediately prior to his or her death.
• The parents of the deceased.

When can a claim be made? 

A claim can be brought under the Act within 12 months from the date of the grant in New Zealand of administration in the estate.  The only exception to this is where an application is brought on behalf of a child or a person who does not have mental capacity, in which case the application may be brought two years from the date of grant of administration. 

Claims are most commonly brought by children who for one reason or another, have not been provided for under their parent’s Will.  In some instances, provision may have been made for them but the share which they receive is disproportionate to the share received by other beneficiaries. 

Frequently, an application will be brought because of economic need.  However, there have been instances where adult children have brought a claim even though they were wealthy in their own right.  The basis of the claim is that their parent had a moral duty to provide for them by virtue of their filial relationship. 

How do the Courts treat claims?

In considering claims under the Act, the Court will consider not just the economic needs of the applicant but the overall merits of the claim having regard to the applicant’s circumstances at the date of death of the deceased, relations between the deceased and the applicant as well as the size of the deceased’s estate. 

In considering applications under the Act, the Court must have regard to the moral duty of the deceased towards the applicant. 
Family protection claims are essentially a balancing act between the wishes of the deceased and the needs of the applicant coupled with the consideration of the deceased’s moral duty towards her or his family. 

Conclusion

Family protection claims can be very costly and usually the costs are borne by the estate.  If you make a Will and decide to exclude children or other family members who would otherwise be entitled to, or would expect to benefit from your estate, you should state the reason clearly, in your Will.  This can be of considerable help to the Court in determining how best to the settle a claim under the Act and could also help to minimise the associated legal costs.  If you do wish to exclude one or more family members from your Will, consult your lawyer first so that you fully understand the implications of doing so.

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