The starting point in New Zealand is that individuals have testamentary freedom to dispose of their assets under their will as they choose, however our laws consider that they also have a moral obligation to make provision for those people who have depended on them during their lifetime.
Kate Sullivan Tompkins Wake
The Family Protection Act 1955 (“FPA”) seeks to address situations where a will maker is deemed to have not made adequate provision for the proper maintenance and support of certain family members.
People entitled to bring a claim under the FPA include:
- Spouses or civil union partners.
- De facto partners (provided they were living in a de facto relationship with the will maker at the time of the will maker’s death).
- Children and grandchildren.
- Stepchildren who were financially supported by the will maker at the date of death.
- Parents ( if there is no surviving spouse, de facto partner, or child of the will maker).
A claim against an estate must be filed in either the Family Court or the High Court within 12 months from the date probate or letters of administration are granted.
The Courts have a wide discretion when deciding if a will maker has breached their moral obligation to a claimant and will consider a number of factors including but not limited to:
- The financial position of the claimant.
- The value of the estate.
- The strength of the relationship the claimant had with the will maker.
If a breach of moral duty is found to exist, the Courts have the authority to make an award to the claimant to remedy the breach but will not go so far as to rewrite a will to make it ‘fair’.
Niamh Hooper Tompkins Wake
Any intervention by the court will only be to the extent necessary to remedy the moral breach.
It is important to note that the FPA applies only to assets that fall into the will maker’s estate. Any assets that have been transferred to a trust or gifted during the will maker’s lifetime are not within the scope of the FPA.
Family structures are becoming increasingly more complex and if individuals wish to avoid disputes arising after their death, then careful consideration should be given to estate planning.
To reduce the risk of successful claims being made after death a will maker should review their will regularly to ensure it is up to date and reflects their current circumstances.
If a will maker wishes to leave a significant family member out of their will, then clearly documenting their reasons and intentions is important to assist in the defence of any claim made against the estate under the FPA.
Whether you need advice on safeguarding your assets after your death or on your entitlements under an estate the team at Tompkins Wake has extensive expert experience in asset planning and resolving disputes against estates.
- Kate Sullivan is a Partner at Tompkins Wake, Rotorua. She can be reached on 07 838 6054, or
kate.sullivan@tompkinswake.co.nz - Niamh Hooper is a Solicitor at Tompkins Wake, Tauranga. She can be reached on 07 578 5033, or
niamh.hooper@tompkinswake.co.nz
Law. Photo: Pixabay, pexels.com
