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Family Protection Act, Testamentary trusts, Wills

70% too late?

On first blush Kinney v Pardington appears to set the bar for Family Protection Act (FPA)claims at an almost unprecedented 70% in the context of one of three children claiming a breach of moral duty.  However, when the facts are considered, the context of this case, may set it apart due to the very specific facts and the need of one child to be recognised following her father’s death to reflect that she was not publicly recognised during his life.

The relevant background can be summarised as follows:

  • The claimant is a natural daughter of the deceased
  • she has a valid claim under the FPA
  • she is in need, and
  • the deceased sons are not.

The claimant is also a beneficiary of a trust settled by the deceased.  She has not benefited from that trust. Claims against that trust will be considered separately.

The claimant had limited contact with her father, and her formative years were subject to significant challenge.

The principles relating to FPA claims are relatively settled.  However, the following excerpt from the decision in Black v Black is illustrative:

[51]  More recently, Gendall and Whata JJ elaborated in Black v Black that the that the that the inquiry into the content of moral duty, and any breach requisite remedy, involves an evaluation of a number of factors including:
(a) the nature of relationship testator and claimant;
(b) the financial need of claimant;
(c) recognition of familial connection and belonging;
(d) inter vivos contributions, if any;
(e) entitling and disentitling conduct;
(f) repair of parental abuse and neglect;  and
(g) the size of estate.

The paramount interests of illegitimate children compared with a sibling relationship was recognised in Re Galletly, with an aware of 90% to the children.

As note at [68] the test relating to whether a moral duty has been breached is objective, but does look to the genesis of the breach.  Financial need is not the only consideration.  In Kinney v Pardington it is clear that the particular difficulties the claimant endured and that were exacerbated by her father’s actions and inactions were determinative in a decision that recognised the poignant and disturbing aspects of the claim.

The claimant’s brothers were agreeable to the claimant receiving a 50% share of the estate, in part because they had benefitted from and inter vivos trust.  In reaching a decision to award 70% to the claimant Hull J was motivated by the fact that the claimant had received no historical benefits from the family trust, that she was a beneficiary of, by virtue of being the deceased’s natural child.

The decision is populated by its own facts, but raised the question as to where the pendulum is now headed.


  • Kinney v Pardington [2019] NZHC 317
  • Family Protection Act 1955
  • Black v Black [2014] NZHC 1478
  • Re Galletly [1946] 48 GLR 417


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