FAMILY PROTECTION ACT 1955 CASE NOTES

Here you will find case summaries of how the Court has dealt with actual Family Protection Act 1955 claims. The names of the parties have been anonymised.

Smith v Smith - A Family Protection Act 1955 claim by two adult grandchildren

Background facts

During their lives Mrs and Mrs Smith established a family business providing rides, sideshows and other entertainment at events and fairs throughout the North Island. Mr and Mrs Smith had two sons, Andrew and Jack. By the time Mr Smith died in 1999, the family business was being run by Andrew and Jack.

In 2004 Andrew was tragically killed while servicing one of the rides at the Easter Show. Andrew left behind three children: Anne, James and Paul. Following Andrew’s death, Jack took over the overall management of the family business. Andrew’s son, David, also worked full time in the company.

The will

When Mrs Smith died in 2012, she left an estate valued at approximately $5.276 million. Her last will provided that:

  • Jack would receive properties valued at $485,000; the proceeds of sale of Mrs Smith’s residence ($345,000); her car and on top of that 60% of the residue of her estate ($2.67 million);
  • David would receive $888,000;
  • James and Anne would receive $444,000 each.

The claim

James and Anne made a claim under the Family Protection Act claiming that their grandmother, Mrs Smith failed to make adequate provision for them.

Court’s Decision

The Court dismissed James and Anne’s claim. Mrs Smith was concerned about the continuance of the family business, and wanted to make that possible by favouring Jack and David who continued to work in it. Mrs Smith had turned her mind to the unequal division of her estate, but she thought that David and Anne would understand her reasons for doing so. The provision made for David and Anne was not so small as to leave a justifiable sense of exclusion from participation in the family estate.

Alex McDonald, Family Protection Act 1955 Lawyer

White v White - A claim by two adult children under the Family Protection Act challenging their mother’s will which left everything to their adult sister

Background facts

Mrs White, and her husband who died before her, had three children; Laura, David and Sarah. Mrs White died in 2011.

Laura had lived with her mother her whole life and had been her primary carer.

At the time of Mrs White’s death:

  • all three children were in similar financial circumstances – each having assets of around $600,000 to $700,000. Laura’s assets included a half share of the family home left to her after her father died;
  • David was 70 and had reoccurring prostate cancer and back problems;
  • Sarah was 66 and had Barrett’s oesophagus and back problems from a car crash in the 1970s;
  • Laura was 66 with no reported health concerns;

Mrs White’s estate was worth approximately $657,000 including a half share of the family home.

The will

Mrs White’s last will provided that:

  • Laura would receive a life interest in her mother’s half share of the family home as well as all of her remaining estate valued at $215,300;
  • David and Sarah would only receive their mother’s half share of the family home if Laura died before them. Otherwise they would receive nothing.

The claim

David and Sarah were shocked to learn about their mother’s will. They brought a claim under the Family Protection Act claiming that their mother had breached her moral duty to them to make provision for their maintenance and support.

Court’s decision

The Court decided that the provision made by Mrs White for David and Sarah was grossly disparate (different) taking into account financial, moral and ethical considerations. This was exacerbated by the fact that as David and Sarah were much older than Laura the prospect of them receiving anything from their mother’s estate was low.

The Judge indicated that a just result for all the children would be achieved allowing Laura to remain in the family home for 5 years and, after that, vesting Mrs White’s half share in the family home in David and Sarah in five years’ time. This would give Laura ample time to find alternative accommodation and David and Sarah a fixed point in terms of the recognition to which they were entitled. Rather than enter judgment on those terms the Court left it to the parties to make submissions on the proper relief taking into account the guidance provided by the Court on the issue.

Alex McDonald, Family Protection Act Lawyer

Brown v Brown - a Family Protection Act claim by an adult daughter against mother’s will leaving family farm to adult son

Background facts

Four generations of the Brown family had farmed the family property. Both Mr and Mrs T had farmed it at certain times before their deaths. Their son Richard had worked his entire adult life on the family farm and had contributed to its increased value through both physical labour and financial contributions.

Mr Brown died in 2014 and his wife, Mrs Brown, died the following year. They had three children, Richard, Elizabeth, and Nicola.

Mr and Mrs Brown had made it clear to their family that they wished to keep the farm within the family and would do so by leaving it to Richard who would continue to farm the land.

At the time of their parents’ deaths:

  • Richard had 4 children and assets valued at $3.5 million.
  • Nicola had 2 children. She and her husband had property interests worth about $1.5 million.
  • Elizabeth had 3 children. Her personal net wealth was less than $450,000. Her fiancé had assets of up to $4.5 million and paid for all of their household expenses. However, Elizabeth and her fiancé had an agreement that her fiancé’s assets were to remain his.

The will

Mr and Mrs T’s estate was valued at approximately $6.2 million. Their last wills provided that:

  • Richard was to receive the family farm. His share of his parent’s estate totalled around $4 million
  • Elizabeth and Nicola were to receive the remainder of their estates. Amounting approximately $1.1 million each.

The claim

Elizabeth made a claim under the Family Protection Act for the redistribution of her parent’s estate to discharge their moral duty to provide for her proper maintenance and support. Richard, opposed the claim stating that Elizabeth was not in financial need and $1.1 million was more than enough to provide for her. Nicola supported Richard’s opposition and made no claim for herself.

Court’s decision

The Court dismissed the Family Protection Act 1955 claim. The parents’ intentions were made clear for some considerable time before their deaths. There was evidence that Mr and Mrs T met with the family to explain their intention to leave the farm to Richard and their reasons for doing so. They had given considerable thought as to how they would provide for their daughters. This included growing ‘off-farm’ assets for Elizabeth and Nicola’s benefit. The Court said that it was hard to see how in these circumstances that an inheritance of over $1 million was insufficient to adequately provide for Elizabeth’s proper maintenance and support

Alex McDonald, Family Protection Act Barrister