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When a will doesn't provide.
The Family Protection Act gives certain family members the right to challenge a will. Understanding this law helps whether you are considering a claim or defending an estate.
When someone dies, their will represents their final wishes. But New Zealand law recognises that certain family members have a moral claim to be provided for. The Family Protection Act 1955 allows qualifying family members to challenge a will if they haven't been adequately provided for.
Claims must be filed within 12 months
From the date probate is granted. This deadline is strict, though extensions can be sought in some circumstances.
Who can make a claim?
Only certain categories of people can bring a claim. The relationship to the deceased must fall within those the Act specifically recognises.
Spouse or Partner
strong claimIncludes married spouses, civil union partners, and de facto partners who were living together at the time of death.
The surviving partner almost always has a strong claim, regardless of what the will says.
Children
strong claimIncludes adult children, not just minors. Adopted children have the same rights as biological children.
Stepchildren who weren't legally adopted cannot claim under this Act.
Grandchildren
limited claimCan only claim in limited circumstances, usually when their parent (the deceased's child) has already died.
Special circumstances may apply where grandchildren were dependent on the deceased.
Parents
limited claimCan only claim if the deceased died without a spouse or children, or in very limited other circumstances.
Parents' claims are rarely successful when other closer family exists.
Who cannot claim
What the court considers.
The court asks: what would a wise and just testator have done? No single factor is decisive. The court weighs everything together.
The "wise and just testator" test isn't about what the deceased wanted. It's about what a reasonable person should have done, knowing their family's circumstances and needs.
Size of the estate
Larger estates create greater capacity to provide for family members. A small estate may justify different treatment than a substantial one.
Financial needs of the claimant
The claimant's current financial position matters significantly. Someone who is financially independent may receive less than someone in need.
Other beneficiaries' needs
The court balances the claimant's needs against those of other beneficiaries. Provision for one shouldn't unreasonably deprive others.
Relationship with the deceased
The nature of the relationship affects what provision is appropriate. Estrangement doesn't automatically bar a claim, but it's relevant.
Contributions made
Did the claimant contribute to the deceased's welfare or to building the estate? Services provided, care given, or financial contributions may strengthen a claim.
The deceased's reasons
If the deceased left reasons for their decisions, the court will consider them. However, disapproval of lifestyle choices rarely justifies complete exclusion.
Common scenarios.
These situations frequently give rise to claims. Every case is different, but these patterns help illustrate when claims are likely.
Disinherited adult children
A parent leaves their entire estate to one child, cutting out another completely. The excluded child may claim even if they are financially comfortable. Courts often find that moral duty exists even toward adult children who don't "need" the money.
Unequal treatment between children
A will leaves significantly more to one child than others. While parents can treat children differently for good reasons, substantial unexplained inequality may give rise to successful claims.
New spouse vs prior children
A person remarries and leaves everything to their new spouse, providing nothing for children from their first marriage. Courts frequently adjust such wills to recognise obligations to children.
Estranged family members
The deceased cut contact with a family member years ago. Estrangement reduces but doesn't eliminate moral obligation. Courts look at who caused the estrangement and whether reconciliation was attempted.
Recognise your situation? We can help you understand your options.
Discuss Your SituationManaging claim risk.
If you are administering an estate that may face claims, you have specific duties and risks to manage. Getting this right protects both you and the beneficiaries.
Notify potential claimants
Early Action
- Identify family members who could claim
- Inform them of their potential rights
- Give them opportunity to seek advice
- Document that notification occurred
Hold back distributions
Protection
- Don't distribute until 12 months pass
- Or obtain indemnities from beneficiaries
- Keep reserves if claims seem likely
- Consider court direction if uncertain
Document everything
Records
- Keep records of all decisions
- Note reasons for timing of distributions
- Save all correspondence
- Record any threats or intimations
Manage competing interests
Critical
- Stay neutral between beneficiaries
- Avoid taking sides in disputes
- Seek professional guidance
- Consider mediation where appropriate
Personal liability warning
If you distribute the estate before the claim period expires and a successful claim is later made, you may be personally liable for amounts you can't recover from beneficiaries.
Read our executor guideHow proper planning reduces claims.
Communicate with family
People are less likely to challenge decisions they understand. A testator who explains their reasoning (in life or through a memorandum) gives context that helps.
Provide some provision
Complete exclusion is harder to defend than reduced provision. Even a modest legacy acknowledges the relationship.
Document reasons
If there are good reasons for particular decisions, record them. Courts can't ask the deceased why they chose as they did.
Consider timing
Lifetime gifts can sometimes achieve objectives while reducing what's in the estate at death. However, these can be "clawed back" in some circumstances.
Review regularly
Circumstances change. A will that made sense ten years ago may now create problems. Regular review keeps plans current.
Related Services
Learn more about estate planning and administration.
Related Guide
Understand how to create a will that minimises the risk of Family Protection Act claims.
Read the Creating Your Will GuideRelated Reading
Life Interest Wills: Protecting Your Spouse and Children
How life interest provisions can protect your spouse while ensuring assets ultimately pass to your children. Essential reading for blended families and second marriages.
Estate Planning for Blended Families
Blended families face unique estate planning challenges. Learn how to provide for your spouse while protecting your children's inheritance.