“Where there’s a Will – there’s a relative!”
Ricky Gervais
Ricky is the master of the one-liner and is known for bringing humour to the most serious of topics, but have you ever considered what it would feel like to be left out of your parent’s Will?
In New Zealand, if someone believes they haven’t been adequately provided for by a deceased relative or partner, they may have grounds to make a claim against the estate under the Family Protection Act 1955 (‘FPA’).
Who can challenge the provisions of a Will?
Section 3 of the FPA allows the following ‘relatives’ to make a claim:
- The spouse or civil union partner of the deceased
- A de facto partner, if the partner has the ability to make a claim under the Property (Relationships) Act 1976
- Children of the deceased
- Grandchildren of the deceased
- Stepchildren of the deceased, who were being maintained by the deceased immediately before the deceased’s death
- Parents of the deceased, if there is no living spouse, civil union partner, de facto partner or child of the marriage
What grounds does a claim need to be based on?
Section 4 of the FPA states that if under the terms of the Will, the relative making a claim hasn’t been adequately provided for, the Court may alter the terms of the Will.
When a Will is challenged under the FPA, the Court will assess whether the deceased has breached their moral duty to provide ‘maintenance and support’. That is not to say that the deceased must provide equally for all relatives. Nor does a Will, or a Court for that matter, have to be fair.
The Court will look at individual needs when coming to its finding and will only do the minimum necessary to fix the breach of moral duty. Otherwise, it will adhere to the deceased’s wishes.
What is the meaning of maintenance and support?
The Courts have treated maintenance as a financial need, whereas support has a wider meaning – sustaining, providing comfort, belonging to a family and of having been an important part to the overall life of the deceased.
Since the case of Williams v Aucutt in 2000, the Courts have recognised the importance of belonging to a family and the role of the claimant in the overall life of the deceased. Therefore, a claimant does not necessarily have to be in any financial difficulty in order for a claim to be successful.
Is there a time limit for bringing a claim?
Claims under the FPA should be made within 12 months of the date of the grant of probate, although the Court does have the power to extend the time limit in certain circumstances.
It should be recognised that claims can be expensive, time-consuming, stressful, and divisive. If you wish to challenge a Will, you should seek advice as soon as possible.
If you’d like to speak with us about making a claim under the FPA, please get in touch with Neil or John, or contact reception to make an appointment.
Recommended reading:
How to protect against relationship property claims
Do you have a valid Will?
3 reasons you might need a family trust
Neil Murray
P/ 09 489 9102
E/ neil@armstrongmurray.co.nz
Neil’s career began with Armstrong Murray in 1977. Neil generally practices in the areas of Property and Trust Law. Acting as a Professional Trustee, Neil has served on business boards of clients and is involved in business sales and purchases.
He has particular expertise in Asset Protection, Wills and Estates, and the law relating to charities. His clients value his depth of experience.
This article is brief and general in nature. You should not treat this article as legal advice and should seek professional advice before taking any action in relation to the matters dealt with in this article. Armstrong Murray accepts no liability for losses suffered by any person or organisation who may rely directly or indirectly on this article.