Having a “falling out” with a family member is not uncommon, but what are your obligations to your children, if the falling out is one that makes you consider removing them from your Will is justifiable?
A recent client instructed us to prepare a new will which made no provision for her son, instead leaving her entire estate to charity. She advised that her son and his partner had really “ticked her off” and that she did not want to leave her money to them. She also said that they earned ridiculous amounts of money and did not need her money anyway.
The Family Protection Act 1955 (“the FPA”) makes allowance for a child of the deceased (as well as others) to be able to challenge the provisions of a will, if the will does not make adequate provision for them.
The key question then becomes, whether the will provides for that person’s “proper maintenance and support”.
Recent commentary on the FPA has suggested that the Court treats maintenance as financial need, whereas support is given a broader interpretation, “sustaining, providing comfort, belonging to a family and of having been an important part to the overall life of the deceased”.
Support requires a parent to recognise their children in their Wills to at least some extent.
Maintenance and support are not alternate options, but are composite in nature(1).
When looking at claims under the FPA, the Court asks:
1. whether the will-maker owed a duty of care to the claimant and, if so, whether that duty has been breached; and
2. what is required to remedy that breach.
Factors the Court considers include the age and financial need of the child. Just because a child is financially secure does not mean they are not entitled to a percentage of their parents’ estate. Further, a harsh or abusive relationship may mean that the child is entitled to more.
Commentators also suggest that as a rule of thumb, all children should receive at least 10% of their parents’ estate, regardless of their need or closeness to the parent(2).
The Courts have indicated that a family protection claim based solely on the need for recognition, as part of the deceased’s family, would generally be a modest one and awards have ranged from 5% to 15% of the deceased’s Estate. Where a claimant is in financial need, or there are other factors which mean that they should receive more, the awards have been in the vicinity of 25-30%.
In light of this advice, our client instructed us to leave her son just enough to prevent a claim under the Family Protection Act.
References
1. See “Charities and the FPA: a turning tide” [2007] NZLJ 53
2. Recent case law on the minimum required to remedy a breach of moral obligation under the FPA in particular Re Estate of Coffey; Clarke v Goulding [2017] NZFLR 493 (HC), Mahon v Mahon [2016] NZCA 642 and Ormsby v Selm [2016] NZCA 323
Leave A Comment