Although New Zealand has testamentary freedom – meaning that you can do what you like with your estate upon your death – this freedom is not absolute. Should someone who could be expected to benefit from your estate be disappointed with what you left them (whether they were left nothing or merely less than they wanted) they might be able to bring a claim against your estate.
The Family Protection Act
A key piece of legislation that allows the Courts to override a person’s Will is the Family Protection Act 1955. This Act allows a claim to be made against a deceased’s person’s estate where the claimant is:
- A spouse, surviving civil union partner, or de facto partner of the deceased,
- A child of the deceased,
- A grandchild of the deceased,
- A stepchild who was being partially or wholly financially maintained by the deceased, or
- A parent of the deceased (in certain circumstances).
To be successful in such a claim, the claimant must be able to show that there was a moral duty on the deceased to leave the claimant a portion of their estate (for their proper maintenance and support), that the deceased breached that duty, and a finding by the Court that an award is appropriate in the circumstances. Claims are most often brought by spouses/partners or children of the deceased.
This isn’t to say that there is an automatic right to a certain share of an estate (e.g. equal sharing between children) – the Court will assess the circumstances as a whole, including the needs of recipients of the estate.
An example of such a case is Emeny v Mattsen [2024] NZHC. After the passing of his father, Murray Emeny was left around $127,000 of his father’s $1,000,000 estate. The late Philip Emeny had left his estate to be split between his three children and his grandchildren. However, Murray and one sister were left 15% of the estate each while their sister Jeanette was left 50% along with all chattels, his car, and workshop machinery worth around $150,000 in total.
As Murray had suffered from bad health throughout his life, he applied to the Family Court seeking for his award to be increased by arguing his father had not left enough for his “proper support and maintenance”. The Court held that the 15% was sufficient to recognise Murray’s status as Philip’s son but was not enough to account for his medical needs as a wise testator would have done. Therefore, the Court awarded Murray an additional $50,000. Murray appealed this to the High Court who agreed $50,000 was appropriate and did not increase his award.
Testamentary promises
A claim against an estate can also arise under the Law Reform (Testamentary Promises) Act 1949. This Act applies where the deceased during their lifetime expressly or impliedly promised some reward in their will to another person for services rendered or work performed for the deceased and then fails to do so in their will. The Court is empowered to make an award to the claimant from the estate to complete the promise (whether in whole or part).
How to avoid claims against your estate
If you are wanting to exclude someone from your will who might expect to benefit from your estate (such as a child), or you want to provide for unequal shares, then we recommend you consult with your legal adviser to receive advice on the pros, cons, risks and solutions. By doing this, you reduce the likelihood of a claim against your estate, with the resulting costs that arise and the toll it takes on family members and relationships.
Got questions about updating your Will? Please contact a member of our private client team.
Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.
