Defending a Family Protection Claim
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How To Defend an Estate from a Family Protection Claim
I have successfully defended estates from family protection claims without the estate paying anything to the applicants. This can be done with thorough preparation focusing on the evidence. The applicants need to be made aware of how expensive the process is and that to make a successful claim applications need to be made in both the High Court and Family Court in New Zealand. This can involve multiple interlocutory applications and trials over a three-year period straddling two courts. This is one of the most notoriously expensive forms of civil litigation in the country. This is however an advantage to the Estate if managed correctly.
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While there are no published statistics, I can see that around 900 claims are made each year in New Zealand in the Family Court while there are only 8-10 published decisions. This means that of the 900 claims which will generally have multiple applicants only about 1 in 100 make it to trial. The majority will either settle at mediation or withdraw.
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There are 3-4 published decisions in the High Court concerning appeals from decisions in the Family Court. The Family Court in my opinion provides inconsistent decisions based on the different personal biases associated with the sitting Judge. The High Court is perhaps more predictable. Due to the range of decisions made in the Family Court, it can make mediation difficult as one cannot accurately predict what the outcome may be if taken to trial.
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There is a general belief among many lawyers that a child without need would attract an award of 10 per cent and a grandchild whose parent is deceased 5 per cent. It is important to note that every case is fact specific and while there are general assumptions the defence of an estate is best made with relevant evidence. Many of these matters are decided on the papers that no evidence will be called, and no cross-examination of the applicants will occur. On this basis, the affidavit opposing the claimants is vitally important.
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Defending a family protection claim in New Zealand involves understanding the Family Protection Act 1955, which allows certain family members to challenge a will if they believe they have not been adequately provided for. If you are the executor or a beneficiary opposing such a claim, here’s how you can defend against it:
1. Understand the Grounds of the Claim
A claimant must prove that the deceased failed to make "adequate provision" for their proper maintenance and support. Defence often focus on whether the deceased had a moral duty to provide for the claimant and whether the existing will already meets reasonable expectations.
2. Challenge the Claimant’s Eligibility
Only certain family members can make a claim, including:
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Spouse or de facto partner
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Children (including stepchildren and adopted children)
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Grandchildren
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Parents (in some cases)
If the claimant does not fall into these categories, their claim may be dismissed.
3. Argue the Will Reflects the Deceased’s Wishes
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Courts respect testamentary freedom, meaning people can distribute their estate as they wish.
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If the deceased had valid reasons for excluding or limiting a beneficiary (e.g., estrangement, financial independence), these reasons can be presented as part of the defence.
4. Demonstrate That the Provision Is Adequate
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The court considers the claimant’s financial needs vs. the estate’s ability to provide.
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If the claimant is financially independent, their need may not be considered significant.
5. Show Other Competing Claims
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If there are other beneficiaries (such as a surviving spouse or dependent children) who have a greater need, this can be a strong defense.
6. Highlight Prior Benefits Given to the Claimant
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If the claimant previously received financial assistance, gifts, or benefits from the deceased, these can be factored into the court’s decision.
7. Procedural Defences
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Time limits: Claims must be made within 12 months of probate being granted.
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Insufficient estate assets: If the estate lacks sufficient funds, the court may not be able to grant the claim.
The Start of the Application
Once a person has died the executor of the Estate will receive a letter most commonly from a lawyer that requests details of the Estate. The letter will ask for a copy of the Will, assets held in the estate, s 21 agreements (a financial agreement with their spouse), any associated documents such as a letter of intent and a list of jointly held assets if the deceased person was married or in a relationship at the time of their death. It is important to be honest with the potential applicant or the applicant’s representative and provide that material without delay. The Estate can be criticised and penalised for withholding such information.
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Once this material has been provided the applicant will apply to both the Family Court for an application for provision and the High Court for removal of the executor. It is important to note that most applicants are children or step-children and they will need to have the executor removed from their role so that provision can be made. There are strict time limits in both applications and these applications must be filed within 12 months of the deceased’s death or the date of probate. Failure to do so is often fatal to the application.
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Once that has occurred the applicants will want to have the matter listed for a mediation after affidavits have been filed. I cannot impart how important the affidavits are in these matters. The applicants will file first and the defendants of the Estate will file in reply. Mediation will be promoted by the Court as the first step, largely because it frees Court time, and most Family Protection matters are settled during mediation.
Affidavits
When defending an Estate, the respondents will have the benefit of reading and assessing the claimant's affidavit first. A good affidavit will be easy to read and will cover the relevant aspects of the claim. The Court will look down upon an applicant who unnecessarily criticises the deceased and is petty or derogatory.
The reply affidavit from the defence should have every assertion backed by evidence that can be attached to the affidavit as an annexure. The defence affidavit should respond to any relevant assertion in the applicant’s affidavit. It is not uncommon for these affidavits to be of 50 or more pages.
Mediation
After the affidavits have been filed often from a timetable set by the Family Court all parties will be encouraged to attend mediation. Due to the expense of litigation from both sides’ mediation is promoted as a far cheaper alternative than having a Judge deciding. It is important to know the strengths and weaknesses of your case before attending mediation. This will allow you to make a more informed decision. A strong affidavit filed before mediation will provide you with an advantage in the mediation.
Trial
If the matter fails to settle at mediation a trial date will be set and the period before that will often involve a process of discovery where applications are made through the Court to obtain further evidence. This could be in the form of financial documents or valuation reports. This period can often cost more than the trial itself.
After the trial, a decision will be made in the Family Court, but the result may not be known for another six months. Either party can appeal that decision through the High Court. Costs against the unsuccessful party are common, particularly in the High Court. The value of these costs is set but a schedule and is not a simple reimbursement of legal expenses.
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Important Considerations for Defending an Estate from a Family Protection Claim.
Know the strengths and weaknesses of your case. This needs to be done at the earliest opportunity. Your lawyer should provide you with an accurate letter of advice where they contrast the applicant's case with that of the Estate.
The affidavit needs to be of the highest standard with as much relevant evidence attached as possible. If you assert something where possible provide evidence of that assertion.
Understand that this is about money and try and check your emotions. The applicants will be encouraged to put the deceased in a most unflattering light. This can be highly offensive to the defendants of the estate, but they must realise the purpose is generally to extract more money.
Resolving a matter at mediation is often far less expensive that litigation however make sure that they have the capacity to make such a claim. The Courts are far less generous in these applications than what occurred 20 years ago. Some claims fail altogether because of a procedural hurdle, or the claimants simply run out of money to pursue.
Please contact me if you want further information about defending a claim of this type in the Family Court.
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