Edmonds Judd


You have some legal obligations

We all want to look after our families – both during our lives and after we die. One way you can make sure that your family is looked after when you die is by leaving behind a clear, well-drafted will.


In New Zealand, we have considerable ‘testamentary freedom,’ meaning we can generally choose how we want to distribute our personal assets after our deaths. Testamentary freedom has been a fundamental feature of New Zealand law for many years. There are, however, limits to testamentary freedom. We see these limits in action when claims are made against a family member’s estate.


Claims against an estate

Claims against estates can be made under the Family Protection Act 1955 which provides that you have  a moral duty to provide adequate maintenance and support for certain family members after your death. They include your spouse, children and sometimes grandchildren. Even if you have family members with whom you have had a poor relationship during your lifetime, if you do not adequately provide for their maintenance and support in your will, there is a risk they could make a claim against your estate.


If you want to leave unequal shares of your estate to your family members, or leave a close family member out of your will entirely, it is important to state this expressly in your will and to provide your reasons for doing so. This can reduce the likelihood of a successful claim being made against your estate.


Protecting beneficiaries from their own folly

If you are concerned about how a particular family member (a beneficiary) may use (or misuse) their share of your estate, you should discuss this with us before your will is drafted. Leaving your family members with a significant lump-sum of cash is not the only way to provide them with their share of your estate. There are options such as establishing a protective trust for their share or appointing trustees to manage money on their behalf. These options may ease your concerns.


Family members having different needs

If your family members have different needs, you may want to consider adjusting their share of your estate. With family members who have significant health issues or support needs, your obligation to provide for them may be greater.


Earlier this year, the High Court made a decision in a case,[1] upholding an earlier decision of the Family Court. That decision increased the proportion of a father’s estate that was awarded to his unwell son by a small amount. His son had been unable to work for several years due to his illness, and incurred costs associated with managing his illness. When his father awarded him a smaller share of his estate than his sister, the court decided this had breached his father’s duty to him. The duty to provide adequately for maintenance and support applied, even though the relationship with his father had been strained and dysfunctional over several years before his father’s death.


Repercussions of not providing for your family

If any of your family members have been left out of your will or have not been adequately provided for, they could make a claim against your estate.


When such a claim is made, the court can review the circumstances and make an award from the estate to remedy failure to provide adequate maintenance and support. This is why it’s important to talk with us about the drafting of your will. We can help you adjust your will to minimise the possibility of a successful claim against your estate.


Estate claims can cause increased distress, conflict and delays during an already challenging time for your family. The legal costs associated with defending such a claim can also significantly reduce the value of your estate.


Important to think this through

If you’re tempted to write your wayward son, estranged daughter or irresponsible spouse out of your will, it’s well worth getting advice first. This may spare your family a claim against your estate, and the stress and expense that goes along with such claims.



[1] Emeny v Mattsen [2024] NZHC 291.




DISCLAIMER: All the information published in Fineprint is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Fineprint may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2022.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650

Get independent advice

In a recent case[1], the High Court found that a will administrator’s default in complying with a court order was so flagrant, it justified issuing an order for arrest of the administrator. How did this arise and, more importantly, how could it have been avoided? The will administrator was wearing two hats – one hat as a will administrator and the second hat as a beneficiary.

Dan Eckhout died in October 2017. Dan had named a South-African lawyer as executor in his will; that lawyer renounced the executorship. The court then appointed Dan’s third wife, Karen Eckhout, as administrator of Dan’s estate. Dan’s will left almost all of his estate to Karen. As well as Karen, Dan was survived by five adult children, one of whom was a stepchild. The sum of 120,000 South African rand (NZ$12,000) was left in trust for the three children of Dan’s second marriage. Michelle Connelly, the second child of Dan’s first marriage received nothing. She brought a claim under the Family Protection Act 1955 (FPA) for some provision from Dan’s estate. None of Dan’s other children brought claims.


Two hats are a no-no

Karen was wearing two hats in the proceedings. Wearing her first hat, Karen was a court-appointed administrator with duties to all the beneficiaries; she also had an obligation to assist the court by making information available about Dan’s finances. Wearing her second hat, Karen was the beneficiary who would lose out financially if Michelle’s claim succeeded.

An administrator must be neutral in a FPA claim. Karen was definitely not neutral.


Dan’s assets

It is fair to say that Karen had a somewhat laissez-faire attitude in providing the court, and Michelle, with information about Dan’s finances. It was not made clear how much Dan’s estate was worth.

A family trust, of which Karen was a trustee and both Karen and all of Dan’s children were beneficiaries, was wound up and the proceeds distributed to Karen only. Karen bought property in Hamilton, sold the New Zealand family home and moved to Perth to look after her sick parents.

Some of these factors were enough to cause Michelle’s lawyers to apply for a preservation order over the estate’s assets. The application was refused even though Karen did not appear at the hearing. The court, however, required Karen to file a statutory declaration providing precise information on the nature and whereabouts of Dan’s assets.

(It is interesting to note that the lawyers who initially represented Karen in each of her capacities were allowed to withdraw from the case, apparently over issues in relation to the payment of their invoices.)

Karen did not file the statutory declaration about Dan’s finances in the time allowed. Time was extended and the scheduled FPA hearing was delayed. Eventually, two days after the extended deadline, Karen’s new lawyers filed the statutory declaration. Karen declared she had spent about $1 million, but more than $600,000 remained to meet any judgment in Michelle’s favour.


Michelle’s award

The financial information Karen provided was still not precise, but the court had enough information to approximate the value of Dan’s estate at $1,939,000. Karen acknowledged that Dan breached his moral duty to Michelle. Michelle said the breach warranted an award of $850,000. Karen said that was unrealistic and suggested $228,000 would be adequate. The court awarded Michelle $350,000, which it calculated represented 18% of Dan’s estate, plus costs, making a total of $449,742.


Failure to pay leads to order for arrest

Karen did not pay Michelle the funds from her father’s estate. Charging orders were made over the funds Karen had earlier declared she still had and would use to pay Michelle. The Australian bank in which the funds were held could only pay A$4,828. Alarmingly, this was all that remained of the previously declared $600,000+.

Frustrated with Karen’s behaviour, Michelle’s lawyers applied for an order for Karen’s arrest; Karen did not appear at the hearing of this application. A few days later Karen emailed Michelle’s lawyer saying that she would make a substantial, but not full, payment within two weeks.

The court was unimpressed by Karen’s knowing failure to comply with its judgment for which absolutely no excuse, reasonable or otherwise, was offered. It issued an order for Karen’s arrest. The order ‘lay in court’ for a month, giving Karen some wiggle room to make the required payment. If Karen failed to pay within this period, the arrest order would be acted on.

In the absence of news of Karen’s arrest (and it would have been newsworthy), we presume that she finally paid Michelle.


Take care if you’re wearing two hats

This case serves as a warning to anyone who may be both an administrator and a beneficiary in an estate where a family protection claim is made; we can help if you’re in this situation. You will need different lawyers to act for you in each of your different capacities and to help you properly differentiate the roles you have.

Unwittingly wearing two hats is capable of bringing trouble to your door.

[1] Connelly v Eckhout [2022] NZHC 293.


DISCLAIMER: All the information published in Trust eSpeaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Trust eSpeaking may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2022.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650

Best to sign again after lockdown to avoid later complications

During the Covid lockdown, special rules applied to the signing of some legal documents. Obviously it was, and is, not possible to have your signature witnessed by someone outside your bubble in Levels 3 and 4. So the law allowed signing over audio-visual link (AVL) and other similar arrangements. While these documents will remain valid in the future, it may be wise to have wills and enduring powers of attorney (EPAs) signed out of lockdown to avoid any time-consuming queries later on.

Many legal documents need to be signed in a particular way or before a particular person. For example, some documents such as affidavits must be signed in front of a JP or lawyer. As this was, and is, not possible during lockdown, special rules were put in place to enable people to sign documents such as wills, EPAs, affidavits and so on.

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The wise and just will-maker

I need to make a will but I do not want to leave my estate to my son as I never see him. I also do not want to leave my estate to my stepchildren. What can be done?

In some parts of the world, a will-maker can leave their assets to whomever they want, whether that be their children, a distant relative or to the local cats’ home. In New Zealand, however, this is currently not the case. Continue reading

Claims on an estate

How much can a disinherited child expect?

The Family Protection Act 1955 allows children to bring claims against the estate of a deceased parent on the basis that their parent did not adequately provide for their ‘proper maintenance and support’. Exactly what constitutes ‘proper maintenance and support’ is the subject of considerable litigation, as well as extensive commentary in the media.

Since a trio of Court of Appeal decisions in the early 2000s, a general understanding has emerged that awards under the family protection legislation can be quantified by referring to a percentage of the relevant estate. It has long been said that a financially-stable adult child might expect to receive between 10%–20% of the estate of their deceased parent, depending on a number of factors including the size of the estate and the position of others under the will or those people who are entitled to make a claim. In many cases, the 10%–20% threshold has become an informal benchmark when assessing the position of a financially-stable adult child making a claim against a modest, but not insignificant, estate. Continue reading

How many people should you name as attorneys?

In previous articles, we have explained why it is important to have an enduring power of attorney (EPA) and the problems that can be created if you do not have one when the need arises. You should have two EPAs – one for property, and the other for personal care and welfare.

In your EPA, you should also take care to name appropriate people as your attorneys. Ideally you should name two people to manage your property, which also includes your finances and investments.

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Increasing numbers of elderly New Zealanders are going into residential care and seeking the government’s residential care subsidy. The legislation governing the subsidy is the Residential Care and Disability Support Services Act 2018, and the assessment procedure is overseen by the Ministry of Social Development (MSD).

To receive the subsidy, applicants must satisfy three MSD criteria:

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Grandparent wills

Grandparents often want to give some financial assistance to their grandchildren and great-grandchildren. There can be a number of good reasons for making specific provision for grandchildren in your will or through a family trust. The traditional will-drafting practice is for parents to provide for each other and then when both of them have died, they provide for their children, on the assumption that their children will then in turn acquire assets and provide for grandchildren and great-grandchildren.

First, there is often, in practice, no such provision for grandchildren and great-grandchildren by will-makers. In many cases, the will-maker’s children receive their inheritance and either spend it or provide for their partners or spouses. Little, or sometimes nothing, trickles down to grandchildren and great-grandchildren.

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The executor of your will

Making a good choice

Having an executor of your will is like having a manager of your affairs (your estate) after your death. Your executor is named in your will; it is his or her role to carry out the terms of your will. Many people have more than one executor; it spreads the load and it’s also good to have another executor to discuss things with.

Who do you choose?

You can choose anyone to be your executor, but they do need some special qualities. You should consider:

Age: you want them to have the energy, ability and maturity to deal with your affairs. Sometimes this can be a fine balance – if you have someone older there’s a risk they could die before you or could become incapable of fulfilling their duties. However, someone younger may not have sufficient life experience to cope with the role.

Temperament: dealing with an estate can be quite emotional. You want your executors to be calm, steady, decisive and with loads of common sense.

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It’s a time-consuming and expensive process if you don’t have an EPA

Most people are now aware of the importance of having an enduring power of attorney (EPA). If you are unable to make decisions for yourself at any stage (either temporarily or longer term) it is important there is someone in place to act on your behalf. What happens to you, and your family situation, if you have no EPA?


Ensuring you have EPAs (for property and for your health and welfare) is a very important part of keeping your personal affairs in order. An EPA can be used if you are out of the country for a long time and you need someone to keep an eye on your financial affairs, or if you become mentally incapacitated and cannot look after your property or yourself.

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