High Court refuses to increase award to son of deceased under Family Protection Act 1955

New Zealanders enjoy a significant degree of testamentary freedom, unlike many other (largely civil law) countries. However, there are several significant exceptions to this.

One of the main exceptions is the ability to claim against a deceased's estate under the Family Protection Act 1955 ('Act'). Under the Act certain family members who have been excluded from benefiting from an estate, or who are disappointed with the provision made for them, may claim against the estate. Excluding immediate family members from one's estate (particularly one's partner or spouse, or children) is generally unwise, as doing so often results in proceedings against the estate.

The Act does not establish a particular test for whether the court should make an award against an estate. However, the courts have developed a test that generally results in an award where the testator breached his or her "moral duty" to the disappointed beneficiary by excluding him or her from the estate (or by making only modest provision for him or her). What this means in practice is highly fact-specific.

The Act also does not provide guidance as to the quantum that should be awarded. Courts have historically awarded a percentage of the overall value of the estate (Fry v Fry [2014] NZHC 2256) but, more recently, have awarded an absolute monetary amount (Talbot v Talbot [2016] NZHC 2382).

The Family Court made an award of NZ $50,000 due to the beneficiary's ill health

The High Court has recently issued its decision in Emeny v Mattsen (2024] NZHC 291) ('Emeny'), which was an appeal from a decision of the Family Court under the Act.

The decision concerned the estate of Phillip Emeny ('Mr Emeny Sr'). Mr Emeny Sr divided his estate between his three children, including his son Murray Emeny ('Mr Emeny Jr'), and his grandchildren and great-grandchildren. The provision he made for Mr Emeny Jr (and for one of his other children) was relatively modest.

Mr Emeny Jr had suffered from ill health for many years and had been unable to work for some time. Mr Emeny Sr left his son approximately NZ $127,000 of his NZ $1m estate. Mr Emeny Jr claimed under the Act for greater provision from the estate, citing, in particular, his medical needs.

The Family Court found that Mr Emeny Sr had breached his moral duty to his son by not providing for his medical needs, given his ill health. The Family Court awarded Mr Emeny Jr NZ $50,000 from the estate, in addition to his share of the residuary estate (15%).

The High Court refused to increase the award on appeal

Mr Emeny Jr appealed the Family Court's findings to the High Court on several grounds, essentially seeking greater provision. He argued that his share of the residuary estate should not be reduced by the award made to him (his argument appeared to have been based on a misunderstanding of the effect of the award), and that the award should be increased to NZ $75,000.

The High Court considered the circumstances and the Family Court's judgment, but dismissed the appeal.

The Act causes uncertainty and disputes - but steps can be taken during to mitigate its effect

Emeny largely restates the current law and follows the trend for absolute awards. However, it does demonstrate the limits that the Act places on testamentary freedom in New Zealand.

It also demonstrates that awards under the Act are fact-specific and very much depend on the circumstances of the family, the size of the estate and the provisions made under the will. It is difficult to predict with certainty how a court will approach a claim by a disappointed family member.

There are steps that will-makers can take while they are alive to reduce the risk of a claim, but it is vital to seek legal advice before proceeding. It is also important to note that the Law Commission has recommended making significant changes to the Act.

Daniel McLaughlin, a Special Counsel in our Private Wealth team, wrote this article.

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