Testamentary freedom

How certain can I be that my will won’t be challenged?

The simple answer is, you can’t.  The moral duties that legislation deems parents owe children mean that even when you are very clear regarding your wishes; the Family Protection Act 1955 (the Act) can allow challenges, regardless how well intentioned your testamentary disposition might be.  See for example English will decision worries charities.

Family Protection Act 1955

Family Protection Act 1955 (the Act) claims can divide families regardless of the outcome of the claim. This paper will consider matters including where the pendulum currently sits regarding the matters to take into account assessing likelihood and quantum of awards, what practitioners can do to assist clients to avoid such claims and the different attributes of spouse/partner, children and grandchildren claims.


Section 4 of the Act sets out the basis for claims under the act providing that:

4 Claims against estate of deceased person for maintenance

(1)     If any person (referred to in this Act as the deceased) dies, whether testate or intestate, and in terms of his or her will or as a result of his or her intestacy adequate provision is not available from his or her estate for the proper maintenance and support of the persons by whom or on whose behalf application may be made under this Act, the court may, at its discretion on application so made, order that any provision the court thinks fit be made out of the deceased’s estate for all or any of those persons.

Section 3 specifies who can claim under the Act.

3 Persons entitled to claim under Act

(1)    An application for provision out of the estate of any deceased person may be made under this Act by or on behalf of all or any of the following persons:

(a)        the spouse or civil union partner of the deceased:

(aa)      a de facto partner who was living in a de facto relationship with the deceased at the date of his or her death:

(b)        the children of the deceased:

(c)        the grandchildren of the deceased living at his death:

(d)        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:

(e)        the parents of the deceased.

(1A) A parent of the deceased may not make a claim under this Act unless—

(a)        the parent was being maintained wholly or partly, or was legally entitled to be maintained wholly or partly, by the deceased immediately before his or her death; or

(b)        at the date of the claim, none of the following is living:

(i)         the spouse or civil union partner of the deceased:

(ii)        a de facto partner of the deceased in whose favour the court can make an order under this Act:

(iii)        a child of the marriage, civil union, or de facto relationship of the deceased.

(2)    In considering any application by a grandchild of any deceased person for provision out of the estate of that person, the court, in considering the moral duty of the deceased at the date of his 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.

Note that s 4A of the Act provides that an order cannot be made in favour of a de facto partner unless there is a child of the relationship or the de facto partner has made a substantial contribution to the relationship. There is also a serious injustice requirement under s4A.[1]

Case law principles

The principles governing claims under the Act are well-established.

In Little v Angus[2] the Court of Appeal established the broad approach that is applied and emphasized the court’s role in first establishing whether there was a breach of a moral duty and. if there was, what would be necessary to remedy the breach; noting at [127]:

“… The enquiry is as to whether there has been a breach of moral duty judged by the standards of a wise and just testator or testatrix; and if so, what is appropriate to remedy the breach. Only to that extent is the will to be disturbed …”

The enquiry the court makes is necessarily holistic. However, the test is high and mere “unfairness” is insufficient to found a breach.  In Re Leonard[3]  the Court of Appeal discussed the matter at 92 as follows:

“… The question of whether the testator was in breach of his moral duty to his daughters as claimants on his bounty must be determined in the light of all the circumstances and against the social attitudes of the day. Mere unfairness is not sufficient and it must be shown that in a broad sense the applicant has need of maintenance and support.   But an applicant need not be in necessitous circumstances: the size of the estate and the existence on other moral claims on the testator’s bounty are highly relevant and due regard must be had to ethical and moral considerations …”

It is important to appreciate that the inquiry must remain tethered to the legislative requirement that claims are made for the claimant’s “proper maintenance and support.” This expression is expanded upon by the Court of Appeal in Williams v Aucutt [4] at [52]:

“… Support is an additional and wider term than maintenance. In using the composite expression, and requiring “proper” maintenance and support, the legislation recognises that a broader approach is required and the authorities referred to establish that moral and ethical considerations are to be taken into account in determining the scope of the duty. Support is used in its wider dictionary sense of “sustaining, providing comfort”. A child’s path through life is supported not simply by financial provision to meet economic needs and contingencies but also by recognition of belonging to the family and of having been an important part of the overall life of the deceased. Just what provision will constitute proper support in this latter respect is a matter of judgment in all the circumstances of the particular case. It may take the form of lifetime gifts or a bequest of family possessions precious to its members and often part of the family history. And where there is no economic need it may also be met by a legacy of a moderate amount. On the other hand where the estate comprises the accumulation of the family assets and is more than sufficient to meet other needs, provision so small as to leave a justifiable sense of exclusion from participation in the family estate might not amount to proper support for a family member.”

As noted in Ormsby v Van Selm[5]  at [22] “The modern approach to Family Protection claims is well settled … it is well established that the Court should do no more than is necessary in the circumstances of the case to redress a testator’s breach of moral duty (sometimes referred to as the “conservative approach”).  The Court cannot rewrite a will because of a perception that it is unfair…”

The summary Katz J provided in Ormsby v Van Selm is referred to here as a useful summary of the relevant principles.  Her Honour noted:

(a) “Proper maintenance and support” requires a broad approach that includes the need to recognise the child as a valued member of the family and other social and ethical factors. “Support” is a wider term than “maintenance” and is used in its wider dictionary sense of “sustaining, providing comfort”. A child’s path through life is supported not simply by financial provision to meet economic needs and contingencies but also by recognition of belonging to the family and of having been an important part of the overall life of the deceased.

(b) “Proper” denotes something different from “adequate” and the amount of an award is accordingly not to be measured solely by the need of maintenance which would be so if the court were concerned merely with adequacy

(c) Assessing what provision will constitute proper support is a matter of judgment in all the circumstances of the particular case. Where there is no economic need it may be met by a legacy of a moderate amount. On the other hand where the estate comprises the accumulation of the family assets and is more than sufficient to meet other needs, provision so small as to leave a justifiable sense of exclusion from participation in the family estate might not amount to proper support for a family member.

(d) In cases of financial need, the amount necessary to remedy the failure to make adequate provision in the will, will be able to be determined with greater precision than in cases where the need is more of a moral kind.

(e) The size of the estate and any other moral claims on the deceased’s bounty are relevant factors.

(f) In assessing whether the deceased has made appropriate provision for the claimant’s proper maintenance and support, and what would be required to remedy a failure, the court should do no more than the minimum to redress a testator’s breach of moral duty. Beyond that point the testator’s wishes should prevail, even if the individual Judge might, sitting in the testator’s armchair, have seen the matter differently. Testators are at liberty to do what they like with their assets and to treat their children differently or to benefit others once they have made such provisions as are necessary to discharge their moral duty to those entitled to bring claims under the Act.

(g) The Court’s power does not extend to rewriting a will because of a perception that it is unfair. Nor is disparity in the treatment of beneficiaries sufficient, in itself, to establish a claim.

(h) Although awards should not be unduly generous, nor should they be unduly niggardly particularly where the estate is large and it is not necessary to endeavour to satisfy.

Importantly, any award under the Act is discretionary.

Testamentary freedom

Applications under the Act inevitably challege the will-makers freedom to dispose of his or her estate. However, the enquiry made is not directed as to freedom but rather adequcy of provision made for persons covered by the Act.

The case of Kale v Cowley[6] provides some guidance regarding testamentary freedom in circumstances where the children of one family were favoured over another. In that case it was stated that  “The question is not whether the difference that the deceased drew between the two families was appropriate … Rather the test is whether adequate provision has been made for the proper maintenance and support of a claimant taking into account the claimant’s means and obligations, and all other relevant circumstances, which include the size of the estate.”

In identifying whether there has or will be a breach of the obligations owed by the will-maker, the following observation from Paewai-Kohe v Paewai[7] is helpful. In this case the starting point is noted as: “having regard to their need for proper maintenance and support in comparison to what they received.”

The recent decision in Mahon v Mahon[8], which was upheld on appeal[9] also referenced the “proper regard” that must be paid to the will-maker’s freedom to dispose of her estate as she thought fit.

Moving forward, when and how this proper regard is dealt with where significant assets may have been disposed of to an inter vivos trust will likely require on-going consideration.

Spouse / partner claims

Claims of spouses (or in more modern times) partners are generally considered the strongest claims for provision against an estate.[10]   This is the case whether the spouse or partner is defending a claim against others, or claiming on the spouse’s own behalf.[11]

Where adequate provision is not made for a spouse or partner, the surviving spouse or partner can also have resort to the Property (Relationships) Act 1976. Consequently, it is expected that spouse and partner claims will be less represented in decided decisions under the Act.

However, where provision is made through an inter vivos trust, a surviving spouse or partner may need to consider a claim under the Act. See Schroder v Schroder; Jew v Schroder[12], where the widow who was the will-maker’s second wife was granted relief under the Family Protection Act of $400,000 capital and an interest-free loan of $400,000.  The value of the estate was $1.6m.

The matter was unsuccessfuly appealed to the Court of Appeal, which noted that where it is contended that a discretionary beneficiary’s interest in a trust meets a deceased’s moral duty, it may be necessary for the court to make some assessment of the way in which the trust will operate.

Care is required when asset and estate planning is carried out to consider the operation of the trust on the death of one or other spouse or partner to establish whether there might later be circumstances that arise that can bring the will-maker’s moral duty into question.

A will-maker’s wishes may be clear and objectively reasonable, for example providing for a spouse or partner on the expectation that children will be provided for when the surviving spouse or partner dies.  However, if one or more of the children are unhappy with the prospect of waiting for the survivor to die, challenges may be brought under the Act.

Children claims

Claims under the Act by children appear to be the most common claims under the Act. These claims can either be a child against a parent, which may have the effect of reducing the provision made for a surviving parent or step-parent; and children against siblings.

The case of Fry v Fry[13] provides an example of a disenfranchised step-son who was unhappy with his father’s decision to leave his estate to his wife in the first instance.  Accordingly, a claim was brought claiming a breach of moral duty.

While no case was put forward that the deceased’s son had any financial need, this did not mean that his father did not have a moral duty to provide for him.  This duty was not negated by his father and step-mother entering into mirror image wills that would see ultimate provision made for the children / step-children.

The court ordered an award of $175,000, His Honour Justice Moore using the starting point of $460,000 as a 1/3 share of the estate (there were also 2 siblings who were not party to the proceedings).   His Honour, having found a breach of moral duty, was concerned to ensure an award that would not impose unreasonable hardship on the claimant’s step-mother.   The 33% share in this case, might be considered somewhat of a high-water mark relevant to other contemporary decisions and needs to be reference to the relatively small quantum of the estate.

It was suggested in the judgment that had the parties entered into life interest wills the outcome might have been different.  Mutual wills might have been another alternative, as could have been settling an inter vivos trust.

Families, whether or not blended, require careful consideration.  Where a will-maker wants certainty as to the outcome of his or her final testamentary decisions, it is wise to consider where challenges might arise and whether the will can be drafted to address these. Practitioners can usefully assist clients to draft a will or make provision during their life-time to avoid or minimise the impact of such claims.

The recent decision in Talbot v Talbot[14] provides a useful consideration of how inter-sibling claims might be addressed.  In this case, the estate comprised:

  • 1 farm interest worth approximately $4m, and
  • $2m cash

There were three beneficiaries of the estate. The son had worked on the farm from the age of 17.  The two daughters enjoyed a childhood on the farm but eventually left to pursue other opportunities.

One daughter was happy with the terms of the will.  One was not and challenged her surviving parent’s will under the Act, on the basis that:

  • adequate provision was not made for either her proper maintenance, or her proper support, in light of her financial position and what are her economic needs
  • her parents had failed to adequately recognise her position in the family as one of their three children.
  • a redistribution was required to remedy the breach

Jillian contended that “In all the circumstances where there are three siblings … current societal attitudes demand a significantly more substantial distribution to her as a daughter from estates such as these than the 15-17% share currently provided by her parents’ wills.” [26]

In this case, the parent’s testamentary intentions were unwavering for over 20 years (this was a significant consideration and one that practitioners should note when making file notes and similar).  What both parents wanted was that one of their children take over the family farm to keep it in the family where it had been for 4 generations [16], [62] to [65].  See Ashworth v Lambie[15] where the court was also motivated by the parents’ intentions.

Contemporary social mores are important. As noted in Talbot v Talbot at [59] “The question whether a testator is in breach of their moral duty must be determined in light of all the prevailing circumstances and against the social attitudes of the day.”  This means that care is required when considering older decisions.

Where a claimant has measurable assets and no special needs, the hurdle to justify an additional award from the estate being challenged, may be greater.

In Talbot v Talbot the court took note of the quantum of the bequest rather than what share of the estate this equated to.  The Court stated at [69] that “The issue in the case before me is whether the over $1 million inheritance [the Claimant] is to receive from the relatively large estates, bearing in mind her financial position, and the lack of what I see as any real economic need, is sufficient to fulfil her parents’ moral obligation to provide proper maintenance and support for her. The answer, in my view, must be yes.”

Claims made by children involve a two-step process. The first step is to consider whether the claimant’s parents have fulfilled their obligation to provide proper maintenance and support, given the claimant’s financial position and economic needs. The second is to ask whether the parents have fulfilled their moral obligation to recognise the claimant as belonging to the family as a significant member and being an important part of their overall lives.  This is measured at the date of death.

Historically the amount a claimant might expect to receive has perhaps more commonly been referenced by percentage. Moving forward a more holistic approach that looks at the buying power of a bequest might be a more appropriate reference.

The “success rate” of child claims where need cannot be demonstrated may also need to be re-visited. In Williams v Aucutt[16] the Court of Appeal made reference to law reform material and social surveys one of which noted that 90 per cent of all claims made by adult children who were not financially dependent on the deceased were successful. Moving forward the ability of children to successfully claim against an estate where there is no demonstrable need may require greater consideration.

It should not be presumed that children are entitled to an equal share of their parents’ estate.  Each case is looked at on its own facts.  To achieve testamentary freedom is a marathon not a sprint and takes careful planning over time – rather than an end-of the line decision.  It may seem harsh to the siblings who get less.  However, the focus is, currently at least, more on what that share looks like in the context of the claimant’s life, rather than how big it is relative to siblings’ shares.

Grandchildren claims

There has been some flux in the treatment of claims under the Act by grandchildren this century. The following excerpt from the relatively recent decision in Chalk v Hoare[17] at [25] and [26] demonstrates the swing in judicial reasoning over the last two decades.

“[25]     For grandchildren one can go on to draw some assistance from cases such as Re McGregor [1961] NZLR 1077, 1104-1105 and Re Horton [1976] 1 NZLR 251, 255. These cases and others of a like nature indicate that it is often difficult for a grandchild to establish a claim where the grandchild’s parent is a living child of the deceased. As a starting point one expects that the bounty for that particular family will filter down to the second generation via the first. But it is no more than a starting point and it is easily departed from whenever there is a reason for doing so. For example, in the present case the child of the deceased who was the immediate parent of the claimant grandchildren has died. In those circumstances there can be a readiness to make an award in favour of the grandchildren on a basis which in its total value may not differ greatly from the claim which the immediate child would have had. (Fraser v O’Grady M262/96, Auckland, 20 May 1997.)

[26]       In relation to the last sentence about the size of any award, Mr Mason emphasised that the grandchildren’s claim must be in their own right. They do not step into the shoes of the parent. I accept that is correct, and my reading of the not particularly numerous cases suggests that a sum rather less than what the deceased parent might have got is the more common outcome, if an award is made at all. Mr Mason also emphasised that of recent times there has been a recognised shift in favour of testamentary freedom, and that cases predating that change must be read within that new context. I also accept that proposition. Whilst generalisations are usually to be avoided, it seems generally accepted that Williams v Aucutt [2000] 2 NZLR 479, and Auckland City Mission v Brown [2002] 2 NZLR 656 “swung the pendulum” back towards a more conservative approach. (See Patterson, The Law of Family Protection and Testamentary Promises, 2004, at 2.5.)”

The more recent case of Lewis v Abernethy[18] provides more guidance as to the exercise of the Court’s discretion under the Act, and somewhat helpfully provides some observations regarding the quantum of awards made. In this case Keane J, undertook an evaluation of previous cases and noted at [46] that “The awards that have been made to grandchildren have been relatively modest. In the cases to which I have been referred most have been less than 10 per cent of the net estate, most indeed less than five per cent. In Fraser v O’Grady the awards made were 7.4 per cent, in Kale v Cowley between 1.75 – 2.8 per cent, and in Chalk v Hoare between 4.3 – 6.7 per cent.”

In a more exceptional case (Re Ormsby (dec’d)[19] an award of 22% for each grandchild was made. However, that case is distinguishable in that entirety of the very substantial estate was left to a number of charities, to the exclusion of the deceased’s son and his three children.

In Lewis v Abernethy, an award of 15% was made to each of the two grandchildren of the deceased. However, this case also turns on its own facts, as the whole estate was left to her daughter (the deceased’s sister) with the value of the estate coming from a property acquisition made possible by postponing the rights of all the children and grandchildren under a number of trusts, and the will did not compensate the grandchildren for this postponement.

In Mahon v Mahon[20] the claimant grandchildren would each receive $445,000 (approximately 7% of the estate) when a trust to which the will-maker left a large portion of her estate was distributed.   The possibility that this inheritance might be deferred until the final distribution of the trust in question was discounted by the court,  McKenzie J stated that  “Melva’s memorandum of wishes recognised the trustees’ sole and unfettered discretion as to the date of distribution, but her expression of her aims clearly linked that to the sale of the farm, which has now occurred. If the trustees do not exercise their powers properly, the plaintiff may have other remedies. The intervention of this Court on the present claim is not appropriate.”

The question for the court was whether the provision made for them was “so small as to leave a justifiable sense of exclusion from participation in the family estate.”

The Court found that it was not. Noting at [100] that:

“[100] Proper regard must be paid to Melva’s freedom to dispose of her estate as she thought fit. The amount of the provision was not so small as to leave a justifiable sense of exclusion from participation. Rather, what is complained of is that there was no equality of participation. That is not a proper basis for a claim. The purpose of the Act is not to enable the Court to redress a perceived inequity in the proportions in which the estate is distributed. Melva was entitled to make the differentiation she did between the families of her two sons. She was also entitled to make the differentiation she did between Bill’s children. The differentiation she made was specifically raised with her by Ms McDermott at the meeting on 3 October 2008. Ms McDermott queried with Melva whether she thought Rachael and David would accept the differential and how she had left her estate. Melva said she had not discussed it with them but thought that they would understand. It is clear from the present claim that they do not understand or accept the differentiation. But the discussion demonstrates that the differential did not arise from any inadvertence or misapprehension on Melva’s part. Melva made significant provision for them. To hold that further should be awarded under the Family Protection Act would create an inroad into Melva’s testamentary freedom which would necessarily go beyond ensuring that adequate provision is available from her estate for the proper.”

On appeal, upholding the decion of the High Court, the Court of Appeal referenced the fact that provison was made for the claimants and, it is suggested importantly, that Melva had turned her mind to the unequal distribution and had her reaons for doing so. In conclusion the Court of Appeal endorsed the following comments made in the High Court:

“[79] The departure from equality is understandably distressing to the plaintiffs. That distress will be partly as to the financial consequences and partly as to their perceived standing in Melva’s affections. It will provide little comfort to them, but I repeat what I have said, that I find in the evidence no suggestion that Melva held any member of her family in less esteem than any other. I am satisfied that Melva acted for reasons which appeared to her to be good, and not with the intention of hurting any of her family. These reasons were centred on the future of the business which had been her and Roy’s life’s work. That is evident not only from the greater provision for John, but also from the greater provision for Paul. The only distinction which Melva could possibly have drawn between Paul and his siblings is his involvement in the family business.”

Practical considerations

The difficulty of any will that omits a spouse or partner, child or grandchild who expects to inherit, or that provides for a grossly disproportionate split, can be the difficulty to assess the reasons following the will-maker’s death.

Advisors have the opportunity to advise on consequences and at an entirely practical level consider appropriate executors in the event that a challenge might be anticipated.

In the matter of the Estate of Joan Courtenay[21], which relates to family protection claim by the deceased son and granddaughter where the deceased left her entire estate to another son, who was also the executor of the estate.

The sole executor who was also the sole beneficiary, was not forthcoming with information following the challenge by his brother and niece.

Firstly, the question of conflict was addressed by the Court and it was considered necessary for the executor to be represented separately in his executor and beneficiary capacities.  McKenzie J noted (in a minute referred to in a later decision) that:

“[3] The defendant has two distinct and separate roles in these proceedings.  The first is his role as executor.  In that role, he owes a duty of even-handedness between the plaintiffs, as claimants against the estate, and the beneficiaries of the estate.  Aspects of that duty are given statutory expression in s11A of the Family Protection Act 1055.  The duty is wider than that.  The second role is as beneficiary.  In that capacity, the defendant is able to take a partisan stand supporting the dispositions in the will.

[4] That dual role of the defendant creates a conflict of interest.  The defendant … does not consider that he has a conflict of interest.  That is wrong.  He does.  The conflict is, as a matter of law, inherent in the dual role.”

In the first instance the executor was given time to arrange separate representation of his separate capacities.  However, when he failed to do so in any meaningful way the court ordered the re-call of probate and appointed a new independent trustee and executor whose fees were to be met from the estate.  While the matter was complicated due to the international aspect of the will in question, the court was not persuaded that the outcome should be different.

The case has practical relevance.  Will-makers are wise to be counselled to consider who they leave to the execution of their final wishes and – where there are testamentary imbalances; what challenges (and costs) might arise where the sole beneficiary is the sole executor.

Costs awards

A practical reality of challenges under the Act is the matter of costs. While costs are addressed on a case by case basis, some general principles can be employed to identify how these might fall. The recent decision in decision in Talbot v Talbot usefully considers the “modern approach to the allocation of costs”.  See para [8] to [10]:

“[8]       It is clear from r 14.1 of the High Court Rules that costs in cases such as the present are in the discretion of the Court.  Rules 14.2 to r 14.5 of the High Court Rules then give some guidance as to the way in which this discretion is to be exercised. But it is apparent, too, that the High Court Rules are intended to create a framework for determining costs in individual cases that is both “predictable and expeditious”, this being confirmed in r 14.2(g).   So far as the general principles relating to costs on proceedings under the Act such as the present case are concerned, Brookers Family Law – Family Property[22] addresses this:

FP5.02 Costs

1   General principles

It used to be common practice for the Court to order that costs be borne by the residue of the estate, but with the escalation of costs “gobbling up” much or all of the estate that practice can no longer be relied upon: Fry v Fry [2015] NZHC 2716 at 13.   The Court’s decision as to costs is entirely discretionary:  r 207(1) of the Family Courts Rules 2002 and r 14.1(1) of the High Court Rules. It is now common for costs to follow the event.  A successful plaintiff may expect an order of costs and the unsuccessful plaintiff may expect to contribute to the costs of the other party:  Re Common (deceased); Common v Common [2001] NZFLR 648 (FC); Fry v Fry [2015] NZHC 2716. In some cases parties may be left to carry their own costs.  For example where there are merits on both sides and a costs award against the estate would be too great a burden on the estate: Neary v Neary (HC) Auckland 2010-404-274, 20 December 2010.

The merits of the claim and the conduct of the proceedings may affect a costs order…A Calderbank or offer can reduce a costs award if the offer was higher or close to the amount awarded…In Morgan v Greer (FC) FAM-2001-009-886, 6 August 2004, the unsuccessful claimants were ordered to pay costs because their claim was clearly unmeritorious. That was also the case in C v O (FC) Westport FAM 2006-086-23, 23 May 2007, although the claimant’s withdrawal of her claim was a mitigating circumstance. In Lawson v Schroder (HC) Auckland CIV-2003-404-3155, 22 August 2003, the unsuccessful appellant was ordered to pay solicitor/client costs because the appeal was unmeritorious…

[9]     The commentary in McGechan on Procedure[23] relating to the High Court

Rules also reflects this position where at para HR Pt 14.16 it is noted:

HR Pt 14.16 Family Protection Proceedings

The traditional, but never invariable, practice was to order the costs of all parties to be paid out of the residue of the estate. However, such an order can impact unfairly on the residuary beneficiary, particularly if the estate is not large.   Perhaps for that reason, the Court, in  a  defended  Family Protection proceeding, often left costs to lie where they fell, with the result that the parties had to meet their own costs out of their respective shares of the estate.

More recent cases suggest costs in Family Protection cases should not be excluded from r 14.2 costs principles, in particular the principle that costs should follow the event…

[10]   In the Court of Appeal decision in Packing In Ltd (In Liquidation) v Chilcott[24]

the Court in addressing issues of costs said:

Success or failure in this context is better assessed by a realistic appraisal of the end result rather than by focussing on who initiated what step, and the extent to which that step succeeded or failed.”

The result in Talbot v Talbot noted above, was that the unsuccessful claimant was required to meet her sister’s costs and the Estate’s reasonable costs and disbursements on an indemnity basis.   She was also required to meet her brother’s costs on a 2B basis together with an “appropriate” up-lift to recover 2/3rd of his costs.  Total costs were in excess of $243,000 excluding Jillian, the unsuccessful claimant’s costs.

Where the pendulum falls

The pendulum appears to currently favour testamentary freedom, to the extent permissible where such freedom is predicated on having made adequate provision.

Over recent times the courts have adopted a more conservative approach so as to give the wishes of the testator greater recognition when compared to earlier decisions, which may now have taken too liberal an approach to adjusting testamentary dispositions.

In Ashworth v Lambie[25] the Court stated that “But over the years, at least up until 2000, there was an increasingly liberal attitude towards claimants in family protection claims, especially when brought by adult children”. That trend was halted by the Court of Appeal in Williams v Aucutt[26] where Blanchard J provided that [68]:

“.. the Court is not authorised to rewrite a will merely because it may be perceived as being unfair to a family member, and it is not for a beneficiary to have to justify the share which has been given”.

The implication of the more conservative approach, which it is suggested is still in play, is that potential claimants should be carefully advised as to the prospect of an award in their favour, and the risks of costs against them in the event of failure.

Percentage assessments are to be avoided, as are quantum expectations based on relativity.

The amount by which the will might be disturbed should be expected to be no more than is necessary to make adequate provision for the maintenance and support of the claimant, which requires the judge to make an assessment of what is necessary to make adequate provision. Accordingly, claims moving forward might more properly be based on numerical assessment of need rather than want.

The temporal aspect of asset and estate planning and writing wills should not be overlooked. As family circumstances change, earlier planning may need to be revisited to test for on-going appropriateness.

Practitioners may wish, where possible, to record reasons for decisions. These may take the form of letters to accompany wills; or may be less formal notes that are retained in deeds for later reference.  In some instances such practices may highlight unreasonable decisions; in others they will promote the prospect of the will-maker’s considered wishes being upheld.

Caveatable Interest

Claims under the Family Protection Act 1955 do not of themselves form the basis upon which a caveat can be sustained:Yarrow v Tennent [2017] NZHC 1275

Choice of executor and trustee

Testamentary freedom also encompasses the ability to select executors and trustees and to expect that those decisions will be respected.  However, where an estate is not properly administered, that choice can be revisited by the court.  See Tsang Wing Kwai v Tsang Wing Fai (no 2) [2019] 1 HKLRD 1300 where the overriding consideration for the court was the interest and welfare of the beneficiaries, not the appointment made by the will-maker.

[1] s 4A(2)(b)

[2] [1981] 1 NZLR 126

[3] [1985] 2 NZLR 88

[4] [2000] 2 NZLR 479

[5] [2016] NZHC 228

[6] HC Napier CP23/00, 22 February 2002

[7] [2014] NZHC 2137

[8] [2015] NZHC 2142

[9] Mahon v Mahon [2016] NZCA 642

[10] Rush v Rush (1901) 20 NZLR 249; Flathaug v Weaver [2003] NZFLR 730

[11] Historically this was described by reference to the surviving widow. However, in more modern times the court has recognised that there is no justification for according less weight to a widower’s claim.  See Re Beniden (deceased) (1991) FRNZ 108

[12] (2004) 1 NZTR ¶14-004

[13] Fry v Fry [2014] NZHC 2256

[14] [2016] NZHC 2382

[15] 2012] NZHC 1110

[16] [2000] 2 NZLR 479

[17] [2009] NZHC 335

[18] [2014] NZHC 3081

[19] (1990) 7 FRNZ 573

[20]  [2015] NZHC 2142

[21] [2015] NZHC 2653

[22] Brookers Family Law – Family Property Thompson Brookers at para FP5.02

[23] AC Beck and Others McGechan on Procedure (online loose leaf ed, Thomson Reuters) at HR Pt 14.16

[24] Packing In Ltd (In Liquidation) v Chilcott [2003] 16 PRNZ 869 (CA) at [6]

[25] [2012] NZHC 1110 at [31] – [32]

[26] [2000] 2 NZLR 479 (CA)





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