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The Family Protection Act 1955 (FPA) is a significant piece of legislation in New Zealand that allows certain family members to challenge a will if they believe adequate provision has not been made for them.
Who can make a claim?
Under the FPA, specific relatives of the deceased can make a claim. These are:
- Spouse, De Facto or Civil Union Partner: If the surviving partner believes they should have had more provision from their deceased partner’s estate, they can bring a claim.
- Children: Both biological and legally adopted children of the deceased are eligible to make a claim against their parent’s estate.
- Grandchildren: While grandchildren can make a claim, it is more likely to be successful if their parent (the child of the deceased) has passed away.
- Stepchildren and Parents: In some cases, stepchildren and/or parents of the deceased may be able to claim, though these claims are more challenging to prove and require the stepchild and/or parent to show they were financially dependent on the deceased.
Likelihood of Success
To make a successful claim, a claimant must show that the deceased breached their moral duty to them by failing to make adequate provision for their proper maintenance and support.
Young children and partners or spouses generally have a strong likelihood of success because the courts often view that there is a moral duty of the deceased to provide for them.
Adult children have a harder case. If an adult child is financially independent, proper maintenance and support is more about acknowledging that the claimant was a significant part of the deceased’s life. Any award to an adult child will be weighed against the child’s age, success and position in life at the time of the claim.
Grandchildren, stepchildren, and parents usually need to demonstrate special circumstances, such as financial dependency or contributions to the deceased’s estate, to succeed.
It is important to remember that each case is unique and the Court weighs factors like the size of the estate, the needs of the claimant, and the intentions of the deceased.
What can you get?
If the Court finds that the deceased did breach their moral duty to the claimant, it can make an order for additional provision to be made for the claimant from the deceased’s estate. However, the Court cannot completely rewrite the deceased’s will and is only allowed to make provision that does not exceed what is required to rectify the deceased’s breach of their moral duty. It is difficult to provide an estimate for what a financially independent claimant might receive. However, it is common for a claimant to receive an award of about 10% or more of the value of the estate in acknowledgement of the deceased’s breach of their moral duty.
Can a partner or spouse contract out of the FPA?
The FPA does not expressly ban contracting out so that a partner or spouse is barred from raising an FPA claim against their deceased partner/spouse’s estate.
However, it has been held that claimants cannot surrender their rights under the FPA through entering into a relationship property agreement, and that any attempt to contract out of the FPA is unenforceable. The existence and terms of a relationship property agreement, however, can be relevant to assessing the extent that the deceased has breached their moral duty to the claimant and the level of provision that may be required to rectify the breach.
In the recent case of Christiansen v Jackson and Dodd [2024] NZFC 2717, the Court found that there was no breach of the deceased’s moral duty where the deceased had not made any provision for his partner and instead left his entire estate to his only child. Here, the deceased and his partner had entered into a relationship property agreement that provided that they would like their estates to pass in accordance with their wills and that they would not make any claims against the other’s estate.
In making its decision, the Family Court affirmed that, while the terms of the relationship property agreement attempted to prevent the parties from bringing a claim under the FPA, it is an established rule that parties cannot contract out. However, the Court found that the deceased did not have a moral duty to provide for his partner under his will. Persuasive factors in the Court’s decision included that the parties had entered into a relationship property agreement, the deceased had recently reviewed his will with his lawyer and that the claimant was financially independent.
Key Takeaways
If you believe you have a claim against an estate or want to limit your exposure to a successful claim, please contact one of our Private Wealth team. Any FPA claim must be made within 12 months from the date of probate, so it is important you discuss your potential claim with a lawyer in a timely way.
Disclaimer: The information contained in this article is current at the date of publishing and is of a general nature. It should be used as a guide only and not as a substitute for obtaining legal advice. Specific legal advice should be sought where required.
