Challenging a Will under the Family Protection Act...

A claim under the Family Protection Act 1955 allows certain family members to challenge a Will if they are not sufficiently provided for in the Will. This is because a Will-maker has a moral duty to provide for close family members upon their death.

For a successful claim, it must be shown that the Will-maker did not properly discharge (carry out) their moral duty to provide for their immediate family members in their Will.

You can only make a claim under the Act to challenge a Will if you are specifically related to the deceased. The persons who can make such a claim may include:

• a spouse or civil union partner of the Will-maker;
• a de facto partner in a de facto relationship with the Will-maker at the date of their death;
• a child of the Will-maker;
• a grandchild of the Will-maker living at the time of their death;
• a stepchild of the Will-maker, if they had been provided for by the Will-maker immediately before their death; and
• in some circumstances, parents of the Will-maker.

Such a claim under the Act is not available to siblings, nieces or nephews, aunts or uncles, or cousins.

In determining whether a challenge to a Will under the Act is likely to succeed, the Court will consider whether the deceased breached a moral duty to make adequate provision for the claimant’s proper maintenance and support. Relevant considerations include:

• the size of the estate;
• the nature of relationship between the claimant and the Will-maker, including the conduct of either party;
• the wishes and opinions of the Will-maker;
• the age and health of the claimant;
• the financial position of the claimant, including their ability to earn a living;
• the extent of the moral duty the Will-maker owed the claimant, including whether any other person had a legal or moral duty to provide for the claimant; and
• any changes in circumstances after the death of the Will-maker.

This is not a complete list as the Court may consider other factors which it thinks fit. Ultimately, the Court must be satisfied the current distribution of the estate according to the Will-maker’s Will would be a breach of their moral duty to care for their immediate family.

A claim under the Act is not a challenge based on the Will-maker’s testamentary capacity or undue influence. A successful claim is unlikely to have the Will set aside. Instead, the Court may order the redistribution of the estate to provide for the claimant.

As this redistribution involves changing instructions and wishes in a valid Will, the Court is generally reluctant to override it any further than necessary. Therefore, the Court would be more likely to make minimum adjustments necessary to fix the breach of moral duty.

If you are considering challenging a Will by bringing a claim under the Family Protection Act, it would be prudent to get in contact with a suitably experienced lawyer for advice.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Please note that Rainey Collins is not contracted to provide Legal Aid, other than in the Treaty of Waitangi area.  We therefore are unable to take on any Civil or Family Legal Aid work. If you require Legal Aid in those areas, you can search the list of Legal Aid lawyers on the Ministry of Justice website.