Family Protection Act & Testamentary Promises

June 14, 2020

 

Family Protection Act 1955

 

Under the Family Protection Act 1955, a family member of a testator may be able to make a claim on the basis that the testator had a moral duty to provide for their support and maintenance in their Will and failed to do so. 

 

Only certain family members are eligible to make a claim, as detailed in the Act.  This includes the spouse or partner, children, grandchildren, stepchildren of the deceased who were being maintained wholly or partially by the deceased or who were legally entitled to be, or the parents of the deceased in some circumstances. 

 

The claimant must show that the deceased has breached their moral duty by failing to adequately provide for their maintenance and support.

 

The court will only amend the Will to the minimum extent necessary to repair the breach and will take account of all the relevant circumstances, including:

  • The size of the estate;

  • The means of the claimant;

  • The relationship between the claimant and the deceased; 

  • The other beneficiaries of the estate or claimants against the estate; and

  • Any evidence of the deceased's reasons for disposing of their property in the manner that they did.

 

Law Reform (Testamentary Promises) Act 1949

 

Any person may claim under the Law Reform (Testamentary Promises) Act 1949 where they have performed work or rendered services to a person in exchange for an express or implied promise that they will be provided for under that person's Will, and the testator has failed to do so. 

 

A promise is defined in section 2 of the Act to include any statement or representation of fact or intention. This promise can be express or implied.

 

Service has a wide meaning, and can include things like companionship, housekeeping, and emotional support. However, the work or service must go beyond the care and affection of a normal family relationship.

 

If the claimant proves their case, the Court may award an amount which would be reasonable to remunerate the claimant in the circumstances of the case. The Court will consider all the circumstances, including:

  • The particular promise;

  • The work performed or services rendered and their value;

  • The size of the estate; and

  • Any other claimants against the estate including family members and creditors. 

 

 

Conclusion

Will makers should carefully consider potential claims against their estate and make allowance accordingly. 

 

If you believe you may have grounds to challenge a Will or estate, or if it is time to update your Will or review your estate planning, contact our experienced team on reception@becker.co.nz to discuss your matter further. 

 

 

Nina Becker

Staff Solicitor

 

 

Disclaimer: The information contained in this article is general in nature and not tailored to your personal circumstances. It is only current as at the date posted and should not be relied upon as legal advice. If you require legal advice, please contact us for further assistance.