In a recent High Court case a deceased grandmother left the majority of her Estate to her daughter, who had been her primary caregiver in her elderly years before she moved into a rest home.  Her only other child, a son, had pre-deceased her leaving two children of his own. 

In her Will the grandmother did not provide for her deceased son’s adult children, with whom she had little contact in the years before her death.

The two grandchildren, adults with their own children, who lived in Australia, made a claim under the Family Protection Act 1955 and were successful in the High Court.  The Court decided that the grandmother had breached the moral duty she owed to her son’s children as she had not provided for their proper maintenance and support. 

While there was no documentary evidence to record why the grandmother had excluded the grandchildren from her Will, the daughter explained to the Court that there were two reasons:

  1.  That she had minimal contact with her grandchildren; and
  2. That they had already inherited following their father’s death.

Despite these reasons, the Court held that at the time of their father’s death the grandmother had a clear moral duty to provide for the two grandchildren. 

The High Court awarded the two children 15% each of the Estate plus all their legal costs were to be paid from the Estate.

While having a Will is important, just as important is turning your mind to those people you owe a moral duty to and considering what provision, if any, you make for them in your Will.

If you intend not to provide for someone you owe a moral duty to, you need to consider how that is documented and what the implications of that might be.  

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.