Family Protection Act: Who Can Claim, Deadline, and Filing

A family protection act claim in New Zealand lets a close family member ask the High Court to override a will (or an intestacy result) when the deceased failed to make adequate provision for their proper maintenance and support. The claim is brought under the Family Protection Act 1955, and it must be filed within 12 months of the grant of administration.¹

Who Can Claim

Section 3 of the Act lists the people with standing. Not every relative qualifies.

Spouse or civil union partner. A legally married spouse or civil union partner can claim regardless of how long the relationship lasted.
De facto partner. A partner living in a de facto relationship with the deceased at the date of death qualifies. The definition comes from the Property (Relationships) Act 1976.
Children. All children of the deceased, including children born outside marriage and children of a marriage, civil union, or de facto relationship.
Grandchildren. Grandchildren alive at the date of death. The court considers what provision was already made for the grandchild’s parent when assessing the claim.
Stepchildren. Only if the deceased was wholly or partly maintaining them immediately before death, or was legally required to.
Parents. Only if the deceased was maintaining them, or if no spouse, civil union partner, de facto partner, or children of the deceased are alive.

Standing turns on the legal or biological relationship, not the closeness of the bond. A child who had no contact with the deceased for decades can still file; whether that claim succeeds is a separate question the court weighs on the merits.²

The 12-Month Deadline

Section 9 sets the filing window. For a standard claim, you have 12 months from the date the grant of administration is issued in New Zealand. Where an administrator files on behalf of a minor or someone who lacks mental capacity, the window is two years.¹

The court can extend the deadline, but only if the application for extension is made before the estate has been finally distributed. Once the administrator has distributed all the assets without notice of a pending extension request, those distributions cannot be recovered. A meritorious claim filed one day late can be dismissed, and extensions are never guaranteed. If you are thinking about filing, act as soon as you learn the grant has issued.

The Moral Duty Test

The central question in every claim is whether the deceased breached their moral duty to provide for the applicant. Section 4 gives the court power to make orders when “adequate provision is not available from his or her estate for the proper maintenance and support” of eligible family members.¹

Courts do not look for a mathematically equal split. The standard, built up through case law, asks what a “wise and just” testator would have done. That hypothetical testator is just, but not necessarily loving or generous. Where a will leaves a family member with what the Court of Appeal in Williams v Aucutt called “a justifiable sense of exclusion from participation in the family estate,” the court is more likely to find a breach.³

What the Court Weighs

The claimant’s financial circumstances matter. Someone carrying debt or facing medical costs has a stronger case than someone already financially comfortable. The size of the estate matters too: a larger estate raises the expectation of what proper provision looks like, while a modest estate leaves little room to redistribute without shortchanging primary dependents.

The deceased’s reasoning also counts. If the testator gave informed and careful thought to how the claimant should be treated, had the facts right, and made a deliberate choice, the court is slower to intervene. Where the testator was “wrong-headed, revengeful or simply mistaken,” the will gets closer scrutiny.³

The test is not purely about money. Courts have recognized that support includes recognition of belonging to a family and having been an important part of the deceased’s life, so an adult child who does not strictly need financial help may still succeed if the will effectively erased them from the family estate without good reason.

How to File

Claims are filed in the High Court. The initiating document is a notice of proceeding, and for Family Protection Act claims the applicant must attach a memorandum in the prescribed form (form G5) setting out the details of the claim and the relationship with the deceased.⁴

Documents to Gather

The will and grant of administration. These confirm the deceased’s intentions and that the estate is being formally administered.
Proof of your relationship. Birth, marriage, or civil union certificates, or evidence of a de facto relationship, establish eligibility under Section 3.
Your financial position. Income, assets, debts, and regular expenses let the court assess whether current provision is adequate.
The estate’s financial position. The administrator must provide a statement of assets and liabilities, showing what is actually available.

Who Must Be Served

Section 4(3) requires service on the deceased’s spouse or civil union partner, any de facto partner, and children of the deceased’s marriages, civil unions, or de facto relationships. The court can also direct service on other eligible applicants where special circumstances make it appropriate.¹ Service effectively pauses distribution: administrators who distribute after receiving notice do so at their own risk.

What the Court Can Order

If the court finds a breach of moral duty, Section 5 gives it broad power to order provision from the estate. That can take the form of a lump sum, periodic payments drawn from estate income or investments, or a tailored remedy with conditions attached. The court is not limited to one form and shapes the order to the gap between what the claimant received and what adequate provision looks like, without unnecessarily disregarding the deceased’s wishes for the rest of the estate.¹

Eligibility does not guarantee success. Section 5(1) allows the court to refuse an order entirely where the applicant’s character or conduct makes them undeserving in the court’s view. It is a high bar and rarely applied, but a claimant who seriously mistreated the deceased can lose even when the financial case for provision is strong.¹

Costs and Settlement

Family Protection Act litigation is expensive. Court filing fees apply, and legal representation adds significantly to the cost, because these cases turn on detailed evidence about family relationships, financial circumstances, and the deceased’s reasoning.

Many disputes settle before trial through negotiation or mediation, which reduces costs on both sides. If parties agree, the court can issue a consent order formalizing the redistribution. Self-represented claimants can file through the High Court’s self-service processes, though the complexity of these claims, and the form G5 memorandum in particular, makes legal advice worth considering.

1
New Zealand Legislation. Family Protection Act 1955
2
New Zealand Acts. Family Protection Act 1955 – Section 3 Persons Entitled to Claim Under Act
3
NZLII. Testamentary Claims by Adult Children
4
New Zealand Ministry of Justice. Documents – Prescribed Forms and Useful Templates