The Family Protection Act 1955

The purpose of the Family Protection Act 1955 is to ensure a deceased’s duties to their close family member are met.

The Act allows certain family members of the deceased to apply to the Court requesting provision to be made to them from the deceased’s estate.

Spouses, de facto partners, children, and in some circumstances grandchildren, stepchildren and parents, are allowed to make an application under the Act.

To be eligible the deceased must have a moral duty to provide maintenance and support to the applicant, but has breached that moral duty by failing to make such provisions adequately or at all.

In deciding whether a moral duty has been breached, the Court will consider all existing facts and surrounding circumstances, and as best as possible put itself in the position of the deceased. The Court does not need to find that a family member needed the provision in a strict sense. The moral duty is not restricted to mere financial need but also moral considerations.

If satisfied a moral duty to provide for the applicant did exist and was breached, the Court has the discretion to make an order from the deceased’s estate to the applicant. The Court’s role is not to re-write Wills on the grounds of fairness, instead the Judge will determine the amount required to remedy the breach of the moral duty. In making its decision the Court looks at the size of the estate, other competing moral claims, and the severity of the breach of duty.

A recent case illustrates how the Act works in practice.

In Kinney v Pardington [2019] NZHC 317 the issue before the High Court was how much of the father’s estate should be awarded to his daughter to remedy the breach of the moral duty he had owed to her.

The deceased and his wife had two children, and the applicant was his illegitimate daughter from an extramarital affair.

The estate was worth some $615,000. His Will gave his wife a life interest in the family home and the income from his estate. The deceased’s two sons who were in no financial need were also provided for under his Will, and were also discretionary beneficiaries of a family Trust. The Will made no provision for his illegitimate daughter.

The daughter applied to the High Court under the Family Protection Act for provision from her father’s estate. While it was clear that the deceased owed a moral duty to his daughter, the question was how much she should get from her father’s estate to remedy the breach of that moral duty.

The father had not been part of his daughter’s life and had made only intermittent contact with her. He had kept her existence a secret from his wife and two sons. She had been forbidden from calling him “Dad”, and from acknowledging him in public. When she was placed with Child, Youth and Family Services a social worker tried to get the father to establish contact with his daughter in order to alleviate some of her psychological distress, the deceased had refused to do so. Later a psychological Report noted that the father’s behaviour towards his daughter was abusive and had degraded her personhood.

The applicant suffered from ongoing mental health issues as a result of abuse she suffered as a child, and her unhealthy relationship with the deceased. At the time of her application her financial situation was unstable and her future employment and living arrangements were uncertain. She was in need of financial assistance.

The Court’s decision

Justice Helen Cull emphasised the primacy of the parent-child relationship in our society. She found the daughter had been detrimentally affected by the absence of her father in her life, causing her long-term psychological distress.

The Judge decided the deceased had breached his moral duty to his daughter not only in his Will but throughout her life. When considering what was an appropriate award to remedy his breach of moral duty to her, she noted that proper maintenance and support included not only the daughter’s financial needs but also moral considerations.

The daughter’s claim was based both on her financial need as well as a broader need for support. The deceased’s wife and sons were all financially secure. The Judge decided that the minimum necessary provision to remedy the breach of the deceased’s moral duty to his daughter was to provide her with 70% of the value of his estate. This was subject to his widow’s life interest in the family home and her rights to income from the estate.

Family Protection Act cases very much depend on their own fact situations, but this case illustrates that a high percentage award is sometimes appropriate.

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