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THE WILL-MAKER’S MORAL DUTY

In the realm of estate planning and distribution, New Zealand’s Family Protection Act serves as a crucial safeguard to ensure fair provision for family members left behind. Let’s delve into the essence of this act, its implications, and the moral duty it upholds.

THE ESSENCE OF THE FAMILY PROTECTION ACT

The Family Protection Act empowers the court to intervene in estate litigation cases where the last will of a deceased person fails to adequately provide for eligible family members. It enshrines the concept of “proper maintenance and support,” reflecting a moral obligation on will-makers to ensure their loved ones are cared for even after their passing.

ELIGIBILITY TO MAKE A CLAIM

Those eligible to make a claim under the Family Protection Act include:

• Spouses or civil union partners
• De facto partners in a relationship with the deceased
• Children, including adopted and illegitimate children
• Stepchildren who were financially dependent on the deceased
• Grandchildren
• Parents of the deceased in certain circumstances

TIME LIMIT FOR CLAIMS

A claim under the Family Protection Act must be filed within 12 months of the grant of probate or letters of administration. While the court may exercise discretion to extend this period, prompt action is advisable to safeguard your rights.

UNDERSTANDING THE MORAL DUTY

The moral duty imposed by the act requires will-makers to act with wisdom and fairness in providing for their family members. While the standard is objective, it takes into account societal attitudes and expectations. The court assesses the will-maker’s actions at the time of death, considering various factors.

FACTORS INFLUENCING THE MORAL DUTY

Several factors influence the extent of a will-maker’s moral duty, including:

• The size and nature of the estate
• The relationship between the will-maker and the claimant
• Contributions made by the claimant to the estate or relationship
• Economic needs of the claimant at the time of the will-maker’s death

CHALLENGES AND CONSIDERATIONS

Estrangement or family rifts may impact the moral duty owed by the will-maker, though the court evaluates underlying reasons for such circumstances. Serious misconduct by the claimant may also affect the court’s decision.

SPOUSAL CLAIMS AND PROPERTY RIGHTS

Surviving spouses or partners hold a paramount position in estate claims. While the Property (Relationships) Act 1976 governs relationship property, spouses or partners can still make claims under the Family Protection Act to ensure adequate provision.

WHAT DOES IT MEAN FOR YOU?

The Family Protection Act stands as a pillar of equity in estate distribution, recognizing the moral duty of will-makers to provide for their family, particularly children. If you are considering leaving a child out of your will, I recommend talking to a lawyer so that you reduce the risk of a claim being raised against your estate when you die. 

If you have been left out of a loved one’s will, I recommend talking to a lawyer as soon as possible to protect your rights.