Estates in New Zealand can be challenged for a number of reasons.
A Will can be challenged by making a claim under the Family Protection Act 1955 (the Act). A will-maker has a moral duty to provide for certain family members including their spouse or partner, children, grandchildren, parents and stepchildren (if they were being maintained by the deceased immediately before their death).
One scenario is where a child has not been provided for (or in their view has not been provided for adequately) in the deceased’s Will. Adult children are able to bring a claim pursuant to the Act. This was the case in the recent High Court decision of AP v Lucas. The deceased was married and had 3 adult children from an earlier marriage. He was married shortly before his death, after a two year relationship. His wife had cared for him during this time due to his ill-health.
After an incident with his daughter before his death, the deceased updated his Will making provision for his widow (who received the property and inherited cash funds of $500,000) and the residue of approximately $2.1 million was to be given to his two grandchildren.
One of his children received personal effects valued at approximately $10,000. The child challenged the Will making a claim pursuant to the Act.
The parties agreed that the deceased had breached his moral duty to the child. The question to be determined by the Court was how much was sufficient to make provision for the child and where should it come from. The Court considered a number of factors including the history of a difficult relationship between the two. A moral duty owed by a parent to a child to provide maintenance and support will be reduced if the relationship was dysfunctional, intermittent or reduced in some other way.
The Court also considered the child’s financial circumstances and need for maintenance and support (being in rental accommodation with earnings sufficient to cover living expenses and supporting a child), his lack of support for the child over many years and the deceased’s intention to provide for his widow.
The Judge concluded that by effectively excluding the child from his Will, he breached his moral duty. The Family Court decision was upheld and the child was awarded one third of the residue of the estate, effectively increasing the provision made to the child from $10,000 to $700,000.
The Court remarked that the Court will interfere to the least extent possible to remedy a breach of the moral duty. Each case will turn on it’s individual circumstances.
Collins & May – experts in New Zealand Estates.
