Family Protection & the NZ High Court

Family provision legislation imposes a legal obligation on the Will maker to make proper provision for the support and maintenance of certain defined dependents.

Family Provision Legislation provides that the task of the court is to determine the extent of the provision made for the maintenance, education and advancement in life of the dependent if the Court believes it is inadequate, evaluate what provision, if any, would be adequate.

The purpose of Family provision Acts is not to provide for an equal share of an estate to an aggrieved party it is limited to the provision of adequate maintenance and support out of the deceased’s estate.

James Parker died in March 2014 leaving an estate of approximately $643,000 to his nephews David and Stephen (“the Nephews”) in equal shares.

James had been married in England to Anne but left her and their children Keith and Helen then aged 4 and 8 in 1968, immigrating to New Zealand in 1969. He had no contact with the children for 45 years and did not provide spousal maintenance or child support funds to Anne.

Helen, Keith and Anne relied solely on Government benefits and family assistance. The Court heard evidence from Keith and Helen that James left the family “penniless” that “simple things were not affordable”; and that the family “could never afford to go on trips out or a holiday”

James settled in Nelson in 1976 following extensive travel; his Parents, Sister, Brother-in-Law and two nephews relocated to Nelson shortly after James had settled there enjoying a close family relationship.

During the 1990’s both Keith and Helen started looking for their father. James was finally located in 2012 but did not wish to be contacted by Keith or Helen. In 2014 James changed his mind and exchanged letters with his children, although the Court found that this correspondence showed little interest by James in pursuing an ongoing relationship with his children. Helen discovered her father had died following an internet search when she had not heard from him for a period of time.

In 2017 Keith and Helen sought an order under s4 Family Protection Act 1955. The Court found that as James had been solely responsible for the estrangement, had not supported Keith and Helen financially or emotionally since they were young and they had suffered as a result. James had breached the moral duty in not providing for his children that a “wise and just testator” in his position would have.

After considering the relative positions of Keith and Helen the awarded them $175,000 and $100,000 respectively. The balance of the estate of $368,000 was to go to the nephews equally.

The nephews appealed believing that the amount awarded to both Keith and Helen was plainly wrong, arguing that the proper value of the award to Keith and Helen should be 8-10% of the estate (roughly $64,300.)

The New Zealand High Court was not satisfied either award was plainly wrong for the Following reasons:

James’ primary duty was to make provision for his children. This duty took priority over any duty he may have had to his nephews.

 The provision made to Keith and Helen in the particular circumstances of the case and having regard to similar cases were not unduly generous.

James estate although not large was sufficient and was not burdened by applications from others with a moral claim against the testator. Similarly, as the Nephews hadn’t given evidence as to their financial position, the Family Court was entitled to proceed on the basis they did not require maintenance or support.

Helen’s financial circumstances could only be described as modest. Keith’s were worse.

Finally, neither award seems out of step with those made in comparable cases.

In other posts regarding Family provision, we have outlined the Court’s role to place itself in the position of the Will maker and having taken the facts and circumstances into account decide if the Will maker has breached their moral duty toward their dependents. Importantly the moral duty of the Will maker has been defined as the actions society reasonably expects of a person in the circumstances, by reference to contemporary community standards.

 

 

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