s88 of the Family Protection Act

LEGAL PRINCIPLES UNDER s88 OF THE FAMILY PROTECTION ACT

 

1. A Court may award further provision from an estate where the deceased has failed to make “adequate provision” for the claimant’s “proper maintenance and support”.[1] The Court’s approach to FPA claims was succinctly put in Little v Angus:[2]

 

The inquiry is as to whether there has been a breach of moral duty judged by the standards of a wise and just testator; and, if so, what is appropriate to remedy that breach. Only to the 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.

 

2. The onus is on the applicant to show that there has been a breach of moral duty. Each case is determined on its own facts, in light of all the circumstances of the case. Where there are multiple claimants, the Court must deal with each claimant’s situation on an individual basis. The relevant considerations include the merits of the claim, the applicant’s circumstances at the date of death, past relations between the applicant and the testator, the size of the estate and the strength of other claims.[3] Mere unfairness is not sufficient to warrant disturbing a testamentary disposition. The applicant must show the need of maintenance and support. It is not solely economic factors which are relevant. Moral and ethical considerations, such as the need for family recognition, must also be considered.[4]

 

1. The deceased’s children and grandchildren are eligible claimants under the FPA.[5] However, the surviving spouse’s claim is often considered “paramount”.[6] Moreover, although the relationship between parent and child is important and carries with it a moral obligation reflected in the FPA, it is nevertheless an obligation largely defined by the relationships which actually exists between the parent and child during their joint lives.[7]

 

1. The Court may consider the deceased’s reasons for making dispositions, or for not making provision or further provision for any person when assessing a claim under the FPA.[8] Financial support and benefits provided to the claimant by the deceased during their lifetime are relevant and may reduce the moral duty owed.[9]

 

1. The claimants’ position as beneficiaries of a family trust is relevant. In Flathaug v Weaver, the Court of Appeal held that there was no reason why, in a proper case, an entitlement to a benefit under a trust, even of a fully discretionary nature, should not be taken into account in assessing a testator’s duty to make provision under the FPA.[10] However, it does not automatically relieve the testator from their moral duty towards the claimants.[11] In each case it is a fact specific inquiry.

 

1. Even where there has been a breach of duty, the Court cannot rewrite a Will based on what seems fair. The Court’s function is limited to ordering such provision as is sufficient to repair any breach of moral duty. Beyond that point, the testator’s wishes should prevail.[12]

 

THE LEGAL POSITION OF GRANDCHILDREN UNDER s88 FPA

 

1. It is well established that a grandparent can owe a moral duty to a grandchild. Section 3(2) of the FPA provides:

 

In considering any application by a grandchild of any decision person for provision out of the estate of that person, the Court, in considering the moral duty of the deceased at the date of the death, shall have regard to all the circumstances of the case, and shall have regard to any provision made by the deceased, or by the court in pursuance of this Act, in favour of either or both of the grandchild’s parents.

 

1. In Wrightman v Public Trust, it was held that the factors relevant to claims by grandchildren included the ability of their own parents to provide for them; the closeness of any association between the testator and the grandchild; the prospect of any inheritances they have from other grandparents; the size of the estate; and the number of competing claims.[13]

 

1. Whether there has been a breach of moral duty to a grandchild is, again a fact specific inquiry. It is more likely that a duty will be owed where there is a close relationship between the testator and their grandchild, or when the grandchild’s parent is deceased meaning there is no likelihood of trickledown of inheritance.[14] Conversely, if the grandchild and grandparent are estranged, do not have a particularly close relationship, and the testator was not aware of any special need of the grandchild for maintenance and support, the Court may find nor moral duty to make provision for them.[15]

 

 

 

[1] Family Protection Act 1955 s4.

[2] Little v Angus [1981] 1 NZLR 126 at p 127; approved by Williams v Aucutt [2000] 1 NZLR 479 (CA).

[3] Talbot v Talbot [2017] NZCA 507 at [43]

[4] Williams v Aucutt [2000] 1 NZLR 479 (CA) at [52]

[5] Family Protection Act 1955, s 3

[6] Collier v Barnes [2013] NZFC 7532 at [14].

[7] Vincent v Lewis (2006) 25 FRNZ 7532 at [14]

[8] Family Protection Act 1955, s 11; Jordan v Public Trustee [2001] 1 NZFLR 941.

[9] Talbot v Talbot [2017] NZCA 507 at [43]

[10] Flathaug v Weaver [2003] NZFLR 730 (CA) at [32] and [36]

[11] Re Hardie [2002] NZFLR 229 at [37]

[12] Thurston v Thurston [2014] NZHC 2267 at [80]

[13] Wrightman v Public Trust [2014] NZHC 3124 at [77]

[14] Chalk v Hoare [2009] NZFLR 736 at [42]-[43]

[15] Brown v Brown [2022] NZCA 476 at [78]