I was excluded from a Will, what can I do?

If one of your loved ones has left you out of their Will or you believe that their Will is unfair or their Will did not adequately provide for you, you may be able to make a claim under the Family Protection Act 1955 (the FPA) against their estate.  For your claim to be successful, the deceased must have breached their "moral duty" to make adequate provision for your proper maintenance and support.  However, it is not enough if the deceased simply did not account for you in their Will.

Who can apply?

Any, or all, of the following people may be able to apply for provision against a deceased's estate:

1. The spouse or civil union partner of the deceased;
2. A de facto partner who was living in a de facto relationship with the deceased at the date of his or her death;
3. The children of the deceased;
4. The grandchildren of the deceased living at his death;
5. The stepchildren of the deceased who were being maintained wholly or partly or were legally entitled to be maintained wholly or partly by the deceased immediately before his death;
6. The parents of the deceased.

Did the deceased breach their moral duty?

To be successful in an FPA claim, you must establish that the deceased breached their moral duty to make adequate provision for your proper maintenance and support.  The legislation recognises the need for a broad approach when determining proper maintenance and support.  What "proper support and maintenance" will be is a judgment call depending on all the circumstances of your case.

It is important to note that you do not need to show financial need, in particular the Courts have recognised that providing "proper maintenance and support" for children does not simply extend to financial contributions made by the deceased but also includes giving recognition of belonging to the family and having been an important part in the overall life of the deceased.

How much would I get?

How much you may receive depends on a variety of factors, particularly the estate size and the competing moral claims of other family members.  The Courts take a conservative approach when determining what is necessary to make adequate provision for a claimant, to protect the testamentary freedom of the deceased.

Recent cases have shown that in successful FPA claims adult children have been awarded between 5 to 15% of the deceased's estate for recognition-based claims.  However, each case will turn to the specific circumstances.  For instance, a recent High Court decision awarded a daughter 43.5% of her mother's estate.  This is despite the fact the mother and daughter had been estranged for many decades.  The High Court found that the mother had breached her moral duty to her daughter.  The mother's act of excluding her daughter from her will was considered "unjust and immoral".

How long do I have to make a claim?

A claim under the Family Protection Act 1955 must be brought within 12 months of the date of the grant of probate or letters of administration.  However, you should make your claim within 6 months of the grant of probate or administration to avoid the risk of assets being distributed.

What should I do?

If you have been excluded from your loved one's Will or consider you have not been adequately provided for, you should obtain legal advice promptly if you are an eligible person to make a claim against the deceased's estate to ensure you do not exceed the time limit for raising a claim.  Conversely, if you are a beneficiary and another beneficiary is claiming against the estate which may affect your entitlements, you should also seek legal advice.

If you have any enquiries relating to this topic or article, or require assistance with making or disputing a claim under the Family Protection Act 1955, please contact:

Peter Fuscic (Partner)

DDI: 09 306 6746

Email: pfuscic@mcveaghfleming.co.nz

Vinnie Kumar

DDI: 09 959 0615

Email: vkumar@mcveaghfleming.co.nz

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