When a loved one dies it is a trying time which can be made even more complicated when it comes to the distribution of the deceased’s property under his or her Will. A family member who has not received what they are expecting under the Will may feel aggrieved. 

In some situations, certain family members can bring a claim under the Family Protection Act 1955 (“the Act”) to challenge the person’s Will if they believe that the deceased owed them a moral duty to provide them with maintenance or support. The list of potential claimants is:

  • The spouse or civil union partner of the deceased;
  • A de facto partner who was living in a de facto relationship with the deceased at the date of his or her death;
  • The children of the deceased;
  • The grandchildren of the deceased living at his or her death;
  • The stepchildren of the deceased who were being maintained, wholly or partly, or were legally entitled to be, wholly or partly, maintained by the deceased before his or her death;
  • The parents of the deceased (however, there are certain restrictions relating to applications made by parents).

This list of those who can claim may not match the list of all those who believe they should have a moral claim on the estate of the deceased. This can leave certain groups in a difficult position, including whāngai, because a whāngai does not meet the definition of a “child of the deceased” under the Act.

In a case decided by the Court of Appeal, the natural and ordinary meaning of “children of the deceased” was held to be that a child must be an offspring of the deceased, meaning the deceased must either have fathered or given birth to the child.  Because the list of those who can make claims under the Act continues to be amended by Parliament, the Court concluded that there was no room to read any new content into the items in the list. 

The end result is that the Act does not allow for those who have been adopted by Maori custom to make a claim under the Act because the meaning of “children of the deceased” only includes biological children, and legally adopted children. Any expansion of this definition requires change by Parliament.

Whāngai may have other means of challenging the estate, for example under the Law Reform (Testamentary Promises) Act 1949, the rules of contract or in equity. However, the generally simpler process provided by the Act are unavailable to them.

In some situations the Te Ture Whenua Māori Act permits a whāngai to succeed to their ‘adoptive’ parents Māori land interest.More information about the Te Ture Whenua Māori Act.