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Family Protection Act claims

The pendulum of such claims appears at present to be moving in favour of testamentary freedom. However, this is a broad proposition and each claim must be considered on its own merits. Mander J who delivered the reasons for the Court of Appeal to uphold the High Court decision in O’Neill v O’Neill sets out this view at [37] as follows:

O’Neill v O’Neill relates to second marriage with three adult children from the first marriage where the estate was modest comprising a half share in a house valued at approximately $500,000 and a small number of shares. The background is set out in the High Court decision as follows:

On appeal, (the High Court was not satisfied that there was a breach of the deceased’s moral duty finding a primary duty to his wife). Reference was made by the Court of Appeal to the practical realities of any award and that while 10% might be an appropriate award on account of support, this must be measured relative to what that means in the relevant case. See at [32] as follows:

O’Neill v O’Neill [2020] NZHC 2988; O’Neill v O’Neill [2021] NZHC 50 (costs); O’Neill v O’Neill [2021] NZCA 585

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