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Challenging a Will: Who can make a claim for maintenance and support?
Fraser King |  30/04/2020

Estate Litigation

Sometimes people do not include everyone in their family in their will, or they purposefully leave someone out. Just because you have not been included in a will does not mean that you will ‘miss out’ on inheritance.

If you have been disinherited from a will or you think you should receive a greater share you can make a claim against the deceased’s estate. Such a claim is that the deceased has breach their moral obligation to provide for your maintenance and support – pursuant to section 4 of the Family Protection Act 1955. However, not everyone is eligible to make a claim. Legislation sets out what kind of people can make a claim. Legislation can also allow you to make a claim if the person died without a will.

Who does the legislation allow to make a claim?

Section 4 of the Family Protection Act 1995 lists who can make a claim. The most common types of people are widows, civil union partners, de facto partners, children (whether infant or adult), step-children, grandchildren, charities, and parents. A few of these are discussed below.

Widows, second wives, de facto partners and civil union partners

The duty owed to a surviving widow has always been considered paramount by courts. Although claims by spouses are rarer in modern times with sections 75 and 95 of the Property (Relationships) Act 1976 that allows a spouse to make a separate claim against the Estate that is usually larger than a claim under the Family Protection Act. The duty to the surviving spouse under the Family Protection Act has even been held to be the case in a short marriage of only 2 years (VS v LJS 7/3/08, Judge Flatley, FC Invercargill FAM-2007-025-749). De facto partners and civil union partners enjoy the same status as spouses, so their claim will also be paramount.

Recent developments in law, however, has somewhat limited the amount that can be claimed by widows. In Williams v Aucutt [2000] 2 NZLR 479 the court held that the widow was entitled to what was required for proper ‘maintenance’ and her entitlement to the ‘support’ that includes due recognition of her role in the family. This stance was supported in Wylie v Wylie (2003) 23 FRNZ 156 (CA) whereby the court stated:

“The law entitles Mrs Wylie to generous recognition of her long and effective contribution to the marriage and to the creation of the family assets. But even for an exemplary wife such as Mrs Wylie it limits her claim to the extent of deficiency in terms of the statutory moral and ethical standards considered by this Court in Williams v Aucutt”.

A second wife has not always enjoyed the paramount status accorded to a deceased’s first and only wife. The competing claims of children of the deceased’s first marriage have been held to be strong. However, in Clements v Clements [1995] NZFLR 544 (CA), the Court of Appeal held that a paramount duty was owed to a second wife over what was awarded to her and the deceased’s four children of his first marriage. The court stated the deceased’s primary duty was to his widow, who had supported him through illness.

Children and Step-Children

Children of the deceased have always been held to have strong claims to the estate, sometimes more important than those of spouses. In Flathaug v Weaver (2003) 22 FRNZ 1035 the Court stated:

"The relationship of parent and child has primacy in our society”.


This was reinforced in Fisher v Kirby [2012] NZCA 310 in adding that:

“when weighing the moral duty owed by a parent, the Court will ordinarily conclude that the duty to make adequate provision for the proper maintenance and support of one’s children should take priority over any duty to nieces and nephews.”

The current test of moral duty to children can also be found in Williams v Aucutt, mentioned above, and recognises that children are valued members of the family along with other social and ethical factors.

A court will assess any competing claim against the needs of the children. Therefore, it is often the case that infant children will have a stronger claim than that of adult children and direct descendants will have a stronger claim than step-children. The case of Fry v Fry [2014] NZHC 2256 held that direct blood-descendants have a greater claim than those who are not. However, the court will consider many factors before making a decision.


The test for claims made by grandchildren is the same as for children but first the court must measure the need (if any) of grandchildren for provision in the light of the ability of their own parents to provide for them (Re Horton [1976] 1 NZLR 251 (CA)). This position was upheld in Fraser v O’Grady HC Auckland M262/96, 20 May 1997 in the court stating:

“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”.

Therefore, a claim made by a grandchild, whose own parents have already passed away will often be stronger than that whose parents are still living.


A parent’s ability to claim depends on that parent being maintained or there being no surviving spouse, partner or child of the deceased. Courts have recognised the importance of the parent-child relationship and the reciprocal obligations attached. In Re Covich (1994) 12 FRNZ 608, the Court made an award to the elderly mother of the deceased because she had assisted her unmarried son in his education expenses, and she was in potential need of funds for full time care.

Social and ethical factors may also influence the court. In Re Hunter (2000) 20 FRNZ 228 the mother was awarded the bulk of her son’s intestate estate because the duty was to her rather than his father who had denied paternity and made no financial contribution towards his son’s upbringing.

Making a Claim

If probate of the will has not yet been granted you can lodge a caveat with the High Court preventing probate from being granted until your claim has been heard and the matter resolved. If probate has been granted, any claims must be made within 12 months of the date of probate being granted.

Making a claim can be a stressful and complicated process. McKenna King can advise you on the best way to protect your estate from a claim and/or how to bring a claim against an estate. If you would like advice on any matters regarding challenging or contesting an estate or would like more information about drafting a will, please contact Fraser King and Rhiannon Scott to discuss your matter.

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