If your family member has died and left you less than you need for your proper maintenance and support, you may be able to apply under the Family Protection Act for a larger share of their estate.
In addition, spouses and partners have the option of making a claim under the Property (Relationships) Act. Read about relationship property claims by spouses and partners here.
On this page
- Who can claim under the Family Protection Act?
- What time limits apply?
- What do I need to prove to succeed in a claim?
- What property can I claim against?
- What is the process to make a claim?
- How much does it cost to make a claim?
- Who pays the legal costs of my claim?
- How much will I get if my claim succeeds?
- Claims by children
- Claims by adopted children
- Claims by stepchildren
- Claims by grandchildren
- Claims by spouses / partners
Who can claim under the Family Protection Act?
The following people can claim under the Family Protection Act:
- a 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 (with some exceptions);
- a child of the deceased;
- a grandchild of the deceased;
- a stepchild of the deceased, but only if they were being (or were legally entitled to be) supported financially by the deceased at the date of the deceased’s death; and
- a parent of the deceased (in limited circumstances).
What time limits apply?
Three key time limits apply to claims under the Family Protection Act:
- The executors are typically entitled to distribute the estate to the beneficiaries after a waiting period of 6 months from the date of probate being granted. Within this timeframe, either the claim should be filed with the Court or formal notice should be given to the executors indicating one’s intention to make a claim. The estate might otherwise be distributed to the beneficiaries, making a claim more difficult. (An executor can be held personally liable if they distribute the estate before 6 months from the date of probate. Read about claims against executors here.)
- If, within 6 months from the date of probate, the executors receive formal notice that a person intends to make a claim under the Family Protection Act, the executors must hold off distributing the estate for a further period of 3 months from the date of the notice. From the perspective of an intended claimant, it is usually prudent to serve such a notice at the end of 6 months from the date of probate, giving the claimant a total of 9 months to formulate their claim and attempt to reach a negotiated agreement with the beneficiaries before it is necessary to commence court proceedings.
- The final deadline for bringing a claim is then usually 12 months from the date of probate (but it is 24 months in the case of a child or a person who lacks mental capacity). The court has the power to extend this deadline, but only where the estate has not been fully distributed to the beneficiaries. Any distribution already made cannot usually be undone.
What do I need to prove to succeed in a claim?
To succeed in a claim under the Family Protection Act, a claimant must prove that the deceased was in breach of his or her moral duty to the claimant, as at the date of death, by failing to make adequate provision for the claimant’s proper maintenance and support.
In determining whether the deceased has breached his or her moral duty to the claimant, the court will attempt to place itself in the position of the deceased. It will imagine that the deceased was a just, but not a loving, spouse or parent. It will consider all the circumstances, including the claimant’s financial needs, as well as moral and ethical considerations. It will then decide whether the deceased breached their moral duty to the claimant.
If the court considers that the deceased breached their moral duty to the claimant, it will make an order granting the claimant further provision from the estate for the claimant’s proper maintenance and support. But, in doing so, it will do no more than is necessary to repair the breach of moral duty by the deceased.
The test has been summarised by the Court of Appeal in the following way:
The inquiry is as to whether there has been a breach of moral duty judged by the standards of a wise and just testator or testatrix; and, if so, what is appropriate to remedy that breach. Only to that extent is the will to be disturbed. The size of the estate and any other moral claims on the deceased’s bounty are highly relevant. Changing social attitudes must have their influence on the existence and extent of moral duties. Whether there has been a breach of moral duty is customarily tested as at the date of the testator’s death; but in deciding how a breach should be remedied regard is had to later events.
In another case, the High Court summarised the test as follows:
- The test is whether, objectively considered, there has been a breach of moral duty by the deceased judged by the standards of a wise and just will-maker.
- Moral duty is a composite expression which is not restricted to mere financial need but includes moral and ethical considerations.
- Whether there has been such a breach is to be assessed in all the circumstances of the case including changing social attitudes.
- The size of the estate and any other moral claims on it are relevant considerations.
- It is not sufficient merely to show unfairness. It must be shown in a broad sense that the claimant has need of maintenance and support.
- Mere disparity in the treatment of beneficiaries is not sufficient to establish a claim.
- If a breach of moral duty is established, it is not for the court to be generous with the testator’s property beyond ordering such provision as is sufficient to repair the breach.
- The court’s power does not extend to rewriting a will because of a perception it is unfair.
- Although the relationship of parent and child is important and carries with it a moral obligation reflected in the Family Protection Act, it is nevertheless an obligation largely defined by the relationship which actually exists between parent and child during their joint lives.
What property can I claim against?
The property that is owned by the deceased at the date of death is called his or her estate. Claims by family members under the Family Protection Act can only be made against the deceased’s estate. They cannot be made against property that does not form part of the estate.
Property forming part of the estate
All property owned by the deceased in his or her personal capacity at the date of death forms part of the estate (with the exception of property that is jointly owned – see below). This typically includes the deceased’s home, household chattels, car, bank accounts, shareholdings, bonus bonds, and personal effects.
Property not forming part of the estate
The following property does not form part of the deceased’s estate and cannot be subject to a claim under the Family Protection Act:
- Property already given away or sold – Property that the deceased gave away or sold during his or her lifetime is not owned by the deceased at the date of death and so does not form part of the estate.
- Property owned by a trust or company – Property owned by a trust, even where the deceased is a trustee, is unlikely to be property to which a claim can apply (but any outstanding debt that the trust owes to the deceased is property of the estate). Similarly, a claim cannot apply to property that is owned by a company, but it may apply to company shares if the deceased owned the shares at the date of his or her death.
- Property owned jointly with another person – Property that is owned jointly by the deceased with another person passes to the other person automatically on the deceased’s death by survivorship. This is the case regardless of whether the deceased’s will says that something else is to happen to this property. A joint bank account is an example of jointly owned property – the account and all of the money in it passes automatically to the survivor. Another example is jointly owned real estate – on the death of one of the joint owners, the whole of the property passes automatically to the other.
Property that is not owned jointly is instead owned as tenants in common. Where property is owned as tenants in common, the deceased’s share in the ownership of the property will go into the deceased’s estate, but the remainder of the property continues to be owned by the other co-owners.
In New Zealand, real estate that is owned by more than one person is registered on the title in either their joint names or as tenants in common. If you are unsure whether property was owned by the deceased jointly or as tenants in common, it is possible to find out by searching the Land Information New Zealand (LINZ) database.
What is the process to make a claim?
To make a claim under the Family Protection Act, you will need to file an application with the court. It is usually possible, however, to resolve a claim by agreement without having to go to court.
If you are going to make a claim in court, the application can be made in either the Family Court or the High Court. You should be guided by your lawyer as to which court to file your claim in.
How much does it cost to make a claim?
Different lawyers charge vastly different amounts for their work, but they also provide vastly different levels of service. While it is not always the case that you get what you pay for, it is worth investing in a good lawyer as the effort and attention that your lawyer gives to your case will almost certainly have an impact on the result that you achieve.
The following table sets out roughly what you might expect to spend on legal fees for each of the steps involved in pursuing a claim under the Family Protection Act. It is a general guide only. It is intended to give you some indication of what the costs could look like. Depending on the circumstances of your case, your legal fees may be higher or lower than those shown in this table.
| Stages of a Family Protection Act claim | Low estimate | High estimate |
| Gathering preliminary information and determining eligibility to make claim | $500 | $2,000 |
| Gathering more detailed information | $2,000 | $10,000 |
| Research and advice on strength of claim | $2,000 | $10,000 |
| Putting executor on notice of claim | $1,000 | $10,000 |
| Settlement negotiations / mediation | $5,000 | $30,000 |
| Preparing affidavits and filing proceedings | $5,000 | $30,000 |
| Interlocutory steps (each) | $2,000 | $20,000 |
| Preparing for court hearing (including preparing legal submissions) | $5,000 | $30,000 |
| Court hearing of claim | $2,000 | $20,000 |
| Reviewing decision and enforcement | $500 | $10,000 |
| Appeal process | $0 | $20,000+ |
| Total | $25,000 | $200,000+ |
In addition to legal fees, you will also have to pay disbursements, which are costs that your lawyer incurs on your behalf. Disbursements include any court filing fees, mediator’s fees, and scheduling and setting down fees if the case goes to a hearing.
The fees in the table above may seem high, but remember: almost all cases settle, either before they go to court or at some point during the court process. If all parties act reasonably, and are well advised, settlement is the most cost-effective outcome for all involved.
If you think you cannot afford a lawyer, don’t panic. Where you have a strong case, some lawyers are prepared to be paid some or all of their fees at the end, once you have received your entitlement from the estate.
Who pays the legal costs of my claim?
The court can order that some or all of the legal costs of successful claimants be met from the estate, but this usually only happens where the claimant has acted reasonably in pursuing his or her claim. Even if a person has acted reasonably, there may be other factors that mean that the claimant has to bear his or her own legal costs.
If one or more the beneficiaries oppose a claim under the Family Protection Act, and the claim is ultimately successful, the beneficiaries who opposed the claim can be ordered to pay a portion of the claimant’s legal costs. Conversely, if you bring a claim under the Family Protection Act and you are unsuccessful, you may have to pay some of the legal costs incurred by the other parties in addition to your own.
How much will I get if my claim succeeds?
There are many factors that the court will consider when deciding how much to award a claimant under the Family Protection Act:
- Relationship to the deceased – The deceased owes different moral duties to different people. The person who is owed the greatest moral duty (and therefore the person who would usually expect to receive the most) is the spouse or partner of the deceased. Children are usually next in line. Grandchildren are typically only owed a significant moral duty where their own parent has passed away.
- The size of the estate – The greater the value of the assets in the estate, the larger any award is likely to be. As explained above, only property that the deceased owned at the date of his or her death forms part of the estate.
- The financial need of the claimant – The greater the financial need of the claimant, the greater the provision usually made for them. The starting point is usually that the court will award sufficient provision from the estate to meet the claimant’s reasonable needs. That provision may then be reduced if there are other moral claims on the estate, to ensure that all moral claims can be met. If the claimant is not in any financial need, he or she is usually still entitled to some modest provision from the estate to recognise his or her belonging to the family and having been an important part in the life of the deceased.
- Competing moral claims – Except where an estate is so large that all moral claims on it can be met, the court has to balance all of the moral claims owed to all of the deceased’s family members. This means that, where there is a spouse or partner, the children of the deceased might expect to receive less than where the deceased died without a partner. The converse is also true, so if the deceased did not have any children, the spouse or partner might expect to receive more than if the deceased did have children. Similarly, where there are many children, each child should expect to receive less than if there was only a single child.
- Provision already made for the claimant by the deceased – Where the deceased made provision for the claimant during his or her lifetime, the deceased’s moral duty to provide for the claimant on death is reduced. Where the provision made by the deceased during his or her lifetime was significant, the claimant may not be entitled to receive anything from the deceased’s estate. This is especially the case where the claimant is not in financial need.
- Whether there is a separate family trust of which the claimant is a beneficiary – If the claimant is already a beneficiary of a family trust established by the deceased, that can have an impact on what they receive under a Family Protection Act claim. The question is whether meaningful provision has been made for the claimant through the trust. Where the trust was established for the purpose of providing for family members and is managed by independent trustees, the provision made through the trust is likely to be taken into account when assessing whether further provision should be made for the claimant. However, where the trust is set up for some other principal purpose and the claimant is unlikely to receive provision from the trust, it is less likely to be taken into account.
- Other dependents – If the claimant has young children or others who depend on them (particularly if a dependent suffers from a disability), the court will take that into account in assessing the overall financial need of the claimant.
- Age and health of claimant – A claimant who is elderly and no longer able to work is likely to have greater financial need, and therefore receive greater provision, than a claimant who is still able to earn their own income. Similarly, a claimant who is suffering from a disability, and either cannot earn their own income or has additional expenses related to their disability, is likely to be of greater need and therefore receive a larger award.
- Estrangement – In cases where the claimant is estranged from the deceased, the moral duty owed to the claimant is usually reduced. However, if the estrangement was the fault of the deceased or came about because of poor conduct on the part of the deceased, then that may increase the moral duty owed to the claimant.
- Bad behaviour towards deceased – Where the claimant treated the deceased poorly, this may reduce or even extinguish the moral duty owed to them.
- Bad behaviour by deceased – Neglect of the claimant or inappropriate conduct by the deceased to the claimant (including abuse by the deceased) will generally result in a greater award being made to the claimant in order to compensate them for the breach of moral duty during the deceased’s lifetime.
- Contribution to estate by claimant – Where the claimant has contributed to the building up of the deceased’s estate, especially where they have forgone developing their own financial position as a result, the court will usually recognise a greater moral duty by the deceased to compensate the claimant.
- Promises by deceased – A promise by the deceased that has not been kept, particularly where it was relied on to the claimant’s detriment, will generally result in the court making a greater award to the claimant in compensation for the breach of that promise. This may be the case even where the claimant does not have grounds to make a claim under the Testamentary Promises Act. Read more about claims for promises by the deceased here.
Claims by children
In general terms, claims by children typically fall into one of two categories:
- claims by adult children who are able to support themselves (known as familial recognition claims); and
- claims by infant children or by adult children who by reason of sickness or disability cannot support themselves.
Claims by adult children who are financially stable
A survey carried out by Professor Nicola Peart in 1995 considered 235 cases brought by children under the Family Protection Act between 1985 and 1994. It showed that in larger estates, where the testator was able to satisfy all moral claims owed, the courts had generally awarded between 12.5 and 20 per cent of the estate to a dutiful child who was not in financial need.
A more recent article by Professor Peart in 2007 referred to the increasingly conservative approach taken by the courts and suggested that awards beyond 10 percent for children without financial need would not be common going forward. A leading author in this area, Bill Patterson, takes a similar view, stating: ‘…it seems that anything above 10% of the estate is unlikely to be awarded at the present time to a claimant whose claim is based only on “support”.
If the estate is smaller, or there are competing claims on the estate (for example, by a surviving spouse or other children), a self-supporting adult child might expect to receive less still and, in some cases, the courts have declined to award a self-supporting child anything at all.
In short, adult children who are financially stable should usually expect to receive between 0 and 20% of their parent’s estate, depending on the circumstances, with most financially stable claimants entitled to less than 10%.
Williams v Aucutt [2000] 2 NZLR 479 (CA)
Williams v Aucutt is frequently described as the leading case regarding claims by financially self-supporting adult children. The deceased’s estate was worth $920,000. One daughter, Susan, was relatively well off and had been given a legacy of $50,000 (around 5% of the estate). Her sister, Christine, required greater financial assistance and was awarded the balance of the estate.
The High Court increased Susan’s award to 25% of the estate in recognition of her overall position in the deceased’s life. However, this was overturned by the Court of Appeal, which noted that the enquiry did not require a court to go behind the reasons for a deceased’s differential treatment of his or her children. Instead, it was up to a claimant to prove that the provision made in the will was inadequate for the purposes of maintenance and support. The Court of Appeal held that a further amount of $50,000 (in total approximately $100,000 or 10% of the estate) would recognise the moral duty owed to Susan.
Auckland City Mission v Brown [2002] 2 NZLR 650 (CA)
The Court of Appeal took a similarly conservative approach in Auckland City Mission v Brown, where the claimant, the deceased’s daughter, was of relatively modest means but in good health with no special needs. The Court’s reasoning suggested that an appropriate award should primarily ease the debts and liabilities of the claimant child. The Court stated: “We consider a wise and just testator would have ensured that [the claimant and her family] had the means to acquire a more substantial house for the family debt free and to clear the loan [on the existing house]…together with a sum to supplement their business income and provide a reasonably substantial contingency fund… ” The Court of Appeal awarded the claimant daughter a total of $870,000 out of an estate totalling $4.5 million, which the Court noted was “a little under 20% of his net estate”.
Henry v Henry [2007] NZCA 42
In Henry v Henry, the Court of Appeal cautioned that providing a claimant with sufficient money to purchase a home and allow a contingency fund was not to be regarded as some kind of benchmark, and that the comments made in that regard in Auckland City Mission v Brown were in the context of a large estate with ample money to meet all maintenance needs.
Talbot v Talbot [2017] NZCA 507
In Talbot v Talbot, the Court of Appeal upheld the High Court’s decision to dismiss a daughter’s application for further provision from the estate of her late parents. The claimant daughter, Jillian, was one of three adult children of the deceased parents. The estate comprised a farm property worth $4.3 million and cash assets of $2.2 million. The parents had left the farm to their son, Graham, and half of the cash assets to each of their daughters (ie $1.1 million each).
Graham had worked long hours on the farm since he was 17 years old, with minimal payment. He had joined his parents in partnership, introducing his own machinery and stock to the farm at no cost to his parents. He later looked after farm management and financial responsibility for the farm, contributing significantly towards improvements on the farm.
Jillian and her sister had grown up on the farm but had left to pursue other opportunities. Jillian had significant personal assets and income earning potential. Although she did not own a home, she was in a financially stable position, with a husband who was independently wealthy. The Court held that she was not in economic need and that proper maintenance and support could be provided for her by a legacy of a moderate amount. The Court regarded the $1.1 million left to Jillian as “on any objective assessment, and at the least, a moderate amount”.
Claims by infant children and dependant adult children
Infant children and adult children who are unable to support themselves have a far stronger claim and are almost always entitled to have some provision made for them by their parent.
In determining the amount of an award to be made to an infant child or an adult child of limited means, the court will typically begin by assessing the amount reasonably required for the child’s proper maintenance and support, including for their housing, education, and other immediate and long-term needs.
If the estate is large enough to meet all moral claims on it, the court may award the full amount that the child reasonably needs to meet their needs (without being unduly generous). If there are other competing claims and there is not enough in the estate to meet all the claims on it, the court will adjust the amount that each person receives so as to do justice between all claimants.
What if my surviving stepparent owns all of the property?
In some cases the deceased’s surviving spouse or partner may own most or all of the relationship property, with the deceased owning little in his or her own name. This may have been a deliberate arrangement to offer protection from creditors, or it may simply have been that one party played a much greater role in managing the finances of the relationship. The issue can also arise where the surviving spouse has received by survivorship property that they owned jointly with the deceased.
Where the deceased’s estate is limited because the surviving spouse or partner owns most or all of the assets, it is possible for the deceased’s estate to make a claim against the surviving spouse or partner in order to bring half of the parties’ relationship property into the deceased’s estate.
For a claim to be made by the deceased’s estate against the surviving spouse or partner, the executors of the deceased’s estate must prove that there would otherwise be serious injustice. This is a high threshold.
If the claim is successful, the relationship property share is then available as part of the deceased’s estate either to be paid out to the beneficiaries in accordance with the will or to meet claims against the estate under the Family Protection Act.
Claims by the deceased’s estate against the surviving spouse or partner are usually made in cases of blended families, where the children of the deceased will otherwise miss out on an inheritance because all of the property is owned by their stepparent. In these circumstances, the children will otherwise miss out, as they are unlikely to be able to make a claim against their stepparent’s estate. Read more about claims by stepchildren here.
Claims by adopted children
A legally adopted child has the same rights as a biological child to claim against their adoptive parent’s estate.
A whāngai child (a child adopted under Māori customary practices) cannot make a claim as a child of the deceased under the Family Protection Act. However, unlike a legally adopted child, a whāngai child is usually entitled to claim against the estate of their biological parent.
Claims by stepchildren
Stepchildren can only claim against the estate of their stepparent in limited circumstances.
A stepchild can only claim against the estate of a stepparent if:
- they were being maintained (financially supported) wholly or partly by the deceased immediately before the death; or
- they were legally entitled to be maintained wholly or partly by the deceased immediately before the death.
This is a high threshold. In practice it means that most stepchildren are ineligible to claim against their stepparent’s estate. This regularly gives rise to issues. A parent will often leave the bulk of their estate to their new partner with the expectation that their partner will provide in their will for their children from a prior relationship. If the new partner later fails to do so, the children from the first relationship have limited rights to seek provision from the estate of their stepparent. If they are not out of time to do so, the stepchildren may be able to make a claim against their own parent’s estate. Otherwise, they may be able to claim against their stepparent’s estate on some other basis (for example, under the Testamentary Promises Act or under the doctrine of promissory estoppel). Read about claims for broken promises here.
Claims by grandchildren
Although a grandchild is entitled to bring a claim against their grandparent’s estate, claims by grandchildren are rarely successful.
When considering a claim by a grandchild, the court will have regard to any provision that has been made by the deceased for the grandchild’s parent (ie for the deceased’s son or daughter). It is usually the case that so long as the deceased has made sufficient provision for their son or daughter, the grandchild will have no claim, as the son or daughter can reasonably be expected to provide for the deceased’s grandchildren. In more unusual cases, however, such as where the grandchild’s own parent has died or where the grandparent has taken full responsibility for the grandchild, a moral duty may be owed directly to the grandchild.
In Brown v Brown [2022] NZCA 476, the Court of Appeal rejected a claim by a grandchild of the deceased, illustrating just how difficult such claims can be. The value of the estate totalled just over $7.74 million. The deceased had made sizable provision for his spouse and for each of his three children. He had also made provision for all but two of his grandchildren. Various claims had been made in the High Court but on appeal the only remaining claim was by one of the excluded grandchildren, Belinda.
Belinda listed seven factors in support of her claim:
- She was of modest financial means and had previously suffered from Leukaemia, which could result in her dying before her mother (the deceased’s daughter).
- The estate was of a substantial size and able meet all just claims against it in absolute terms.
- The deceased had not made any provision for her in his will.
- The deceased had not made any significant provision for her during his lifetime.
- She had not received any significant other support during her life from any other source.
- She was estranged from her mother and therefore lacked any realistic expectation of future support from her.
- The deceased had made significant provision for six of the other seven grandchildren of the estate.
The following points were made in opposition to Belinda’s claim:
- Sizable provision had been made by the deceased for Belinda’s mother. Belinda should be expected to look primarily to her parents for maintenance and support.
- There was no evidence that Belinda’s Leukaemia was terminal or that she would die before her mother.
- Belinda had supported allegations of misconduct brought against the deceased by her mother and had had no contact with her grandfather for at least the last two decades of his life.
- The detail of what Belinda had provided of her financial position did not make out a case for immediate need.
- The fact that the deceased had provided for other grandchildren was not relevant to Belinda’s claim.
The Court held that:
- Belinda and the deceased had long been estranged.
- Belinda had not shown that the estrangement was the deceased’s choice.
- The deceased was not aware that Belinda had any need for maintenance and support on her part (nor did he have any obligation to enquire given the estrangement).
- The deceased had provided for her mother, who was obliged in turn to provide for Belinda.
In these circumstances, the Court of Appeal held that the deceased owed no moral duty to provide separately for Belinda.
Claims by spouses / partners
A spouse (ie marriage partner) or civil union partner is entitled to claim under the Family Protection Act as of right.
A de facto partner can claim under the Family Protection Act provided the relationship lasted for 3 years or more. If the de facto relationship lasted for less than 3 years (called a relationship of short duration), the de facto partner can only claim under the Family Protection Act if the court is satisfied that there is a child of the de facto relationship or the de facto partner has made a substantial contribution to the de facto relationship. In either case, the court must also be satisfied that failure to make the order would result in serious injustice.
A surviving partner is entitled to make a claim under the Family Protection Act regardless of whether they choose option A or option B under the Property (Relationships) Act. Read more about a surviving partner’s rights under the Property (Relationships) Act here.
The spouse’s claim is normally regarded as paramount. It must be assessed in the context of the size of the estate and the strength of other claims. What is proper maintenance must relate to the lifestyle enjoyed by the spouses during their marriage. Where a widow has assets such that she does not need any further proper maintenance and support, a claim under the Act will usually fail.
