When a Family Claim Puts an Estate on Hold

The will appeared simple.

A father left nearly everything to one adult child, explaining privately that the other had “already received enough.” The executor obtained probate, collected the bank funds and began preparing the house for sale.

Then an email arrived from the excluded child.

It was not yet a court application. It did not contain detailed evidence or state the amount being sought. It simply said that the child intended to make a claim against the estate and asked the executor not to distribute anything.

At that moment, the administration changed.

The executor could no longer treat the estate as an ordinary, uncontested matter. The message did not prove that the claim would succeed, but it could not safely be ignored. The executor now had to preserve the estate, remain neutral and ensure that no payment defeated a claim that might later be upheld.

For New Zealand executors, claims under the Family Protection Act 1955 create one of the most delicate parts of estate administration. They combine legal deadlines, family history, financial evidence and deeply personal accounts of what the deceased did or failed to do.

Understanding the executor’s role can prevent an already painful dispute from becoming a personal liability problem.

## What Is a Family Protection Act Claim?

New Zealand law gives people significant freedom to decide who will receive their property after death. That freedom is not completely unlimited.

Under the Family Protection Act, certain close family members may ask the court to make further provision from an estate if the deceased failed to make adequate provision for their proper maintenance and support.

This is sometimes described as a claim that the deceased breached a moral duty to provide for the claimant.

A claim can arise where the deceased left a will. It can also arise where there was no valid will and the ordinary intestacy rules do not provide adequately for an eligible family member.

The court does not simply replace the will with whatever distribution seems most equal. It examines the deceased’s moral obligations in the particular circumstances and may make the minimum adjustment considered necessary to remedy a breach. citeturn269276view3

That means being excluded from a will does not automatically produce a successful claim. Equally, receiving something under the will does not prevent a person from arguing that the provision was inadequate.

## Who Is Entitled to Make a Claim?

The right to apply is limited to categories identified by the legislation.

Potential applicants include:

– The deceased’s spouse or civil union partner
– A de facto partner who was living in a de facto relationship with the deceased at the date of death
– A child of the deceased
– A grandchild who was alive when the deceased died
– A qualifying stepchild
– A parent of the deceased in specified circumstances

A stepchild does not qualify merely because their parent once married or partnered with the deceased. The stepchild must generally have been maintained, or legally entitled to be maintained, wholly or partly by the deceased immediately before death.

A parent may qualify where the deceased was maintaining them immediately before death. A parent may also qualify in certain circumstances where the deceased left no living spouse, civil union partner, de facto partner or child. citeturn269276view2turn269276view3

Other people may feel morally close to the deceased without being eligible under this particular law. Siblings, nieces, nephews, friends, caregivers and former partners are not automatically Family Protection Act claimants.

They may have rights under another legal basis, such as a debt, an ownership dispute or a promise of a testamentary reward. The executor should therefore avoid dismissing a complaint merely because it does not fit neatly within the Family Protection Act.

## What Does a Claimant Need to Show?

Eligibility is only the first step.

An adult child does not succeed merely by proving the parent-child relationship. The claimant must persuade the court that the deceased owed them a moral duty and failed to make adequate provision for their proper maintenance and support.

Relevant considerations can include:

– The claimant’s age and health
– Their financial circumstances and earning ability
– The size and nature of the estate
– The provision already made for them
– The history of the relationship
– Contributions made by the claimant
– The deceased’s reasons for the distribution
– The needs and claims of other family members
– Whether anyone else has a legal or moral responsibility to support the claimant
– Changes in circumstances after the death

Financial need can be important, but these cases are not always limited to immediate poverty. Claims by adult children may also involve recognition of belonging within the family and the deceased’s moral obligations, although the result remains highly dependent on the facts.

Estrangement does not automatically defeat a claim. The court may examine why the relationship broke down, how each person behaved and whether the deceased contributed to the separation.

The executor should not attempt to decide the case based on one family member’s version of events.

## The Main Time Limit: Twelve Months From the Grant

The ordinary time limit for a Family Protection Act application is 12 months from the date on which a New Zealand grant of administration is issued.

A grant of administration includes probate, where an executor acts under a will, and letters of administration, where a court-appointed administrator manages the estate.

The clock therefore does not usually begin on the date of death. It begins on the date of the New Zealand grant.

Where an administrator makes an application on behalf of a person who is not of full age or does not have full mental capacity, the prescribed period is two years from the grant. citeturn269276view0turn269276view2

The court has power to extend the ordinary deadline in some circumstances. However, an application for an extension must be made before the estate has been finally distributed. An intending claimant should never assume that extra time will be granted. citeturn269276view0turn269276view2

For executors, this creates an important distinction between the period during which a claim may be filed and the period after which an executor may obtain certain protection when distributing.

## The Six-Month Rule Does Not End the Claim Period

Executors often hear that they should “wait six months after probate.”

That phrase is useful, but incomplete.

Under the Administration Act, an executor may receive protection from personal action for a properly made distribution after six months from the New Zealand grant, provided the executor has not been served with an application and has no written notice of an application or an intention to make one.

However, an eligible claimant ordinarily still has 12 months from the grant to file a Family Protection Act claim. citeturn269276view1

This means the expiry of six months does not make every future claim impossible.

A distribution made after six months in the required circumstances may protect the executor personally, but a later claimant may still be able to pursue remedies involving property distributed to beneficiaries. Estate assets can sometimes be followed, and recipients may potentially be ordered to return value, subject to the legislation and the particular circumstances. citeturn269276view1

Executors should therefore avoid treating the six-month point as an automatic instruction to empty the estate account.

Before distributing, they should consider whether any claim is reasonably foreseeable, whether written notice has been received and whether beneficiaries understand the possibility that funds might later be pursued.

## What Counts as Notice of an Intended Claim?

A claimant does not need to begin with a perfectly drafted legal letter.

Written notice might arrive as:

– A solicitor’s letter
– An email from the claimant
– A formal notice stating an intention to apply
– A copy of filed court documents
– Written correspondence asking the executor not to distribute because a claim is being prepared

The executor should preserve the message and record the date it was received.

A vague expression of disappointment may not necessarily amount to formal notice of an intended application. However, the executor should not make that assessment casually when substantial money is at stake.

When the meaning is unclear, the executor may request clarification and obtain legal advice.

Under the Administration Act, written notice of an intention to make a relevant application generally lapses after three months unless the executor is served with a copy of the application or receives written notice that the application has been filed with the court. The lapse does not prevent the claimant from later filing within the legal time limit, but it can affect the executor’s liability regarding a subsequent distribution. citeturn269276view1

Executors should have the dates carefully diarised rather than relying on memory.

## What Must the Executor Do After Receiving Notice?

The first obligation is usually to avoid defeating the potential claim.

That does not necessarily require every routine estate task to stop. The executor may still need to:

– Preserve and insure property
– Collect estate funds
– Pay valid debts
– Complete necessary tax work
– Maintain or sell assets where appropriate
– Obtain valuations
– Prepare estate accounts

What should usually stop is any distribution that could leave insufficient estate property to satisfy a successful claim.

The executor should promptly:

1. Preserve the written notice.
2. Inform all co-executors.
3. Identify whether any distributions have already been made.
4. Record the estate’s current assets and liabilities.
5. Avoid promising payments to beneficiaries.
6. Request sufficient information to understand the intended claim.
7. Obtain advice about the amount that should remain undistributed.
8. Keep beneficiaries appropriately informed.

The executor should not pressure the claimant to withdraw, threaten to reduce another entitlement or help beneficiaries conceal estate property.

## The Executor Must Remain Neutral

An executor may also be a beneficiary. They may be the deceased’s spouse, child or trusted friend. That does not permit them to run the estate as one side’s private defence team.

The executor’s role is to administer the estate and assist the court with relevant information.

The Family Protection Act specifically requires the administrator, on an application under the Act, to place before the court relevant information in their possession concerning the estate’s financial affairs and the deceased’s reasons for making, or failing to make, provision for a person. An exception applies where disclosure would breach a relevant legal or moral obligation of confidence. citeturn269276view0

The executor may need to provide:

– The will and probate documents
– Estate accounts
– Asset and liability information
– Details of distributions
– Known explanations left by the deceased
– Relevant correspondence
– Information about beneficiaries
– Evidence concerning family circumstances known to the executor

The executor does not have to agree that the claimant deserves more. Nor should the executor suppress evidence because it weakens the position of the beneficiaries named in the will.

Where the executor has a strong personal interest in the outcome, separate legal representation may be appropriate. The estate’s lawyer and the executor’s personal lawyer do not always perform the same role.

## Should the Executor Notify Potential Claimants?

The legislation does not create a simple rule requiring every executor to contact every person who might theoretically qualify and invite them to claim.

Nevertheless, an executor should consider the known family structure and the risks associated with distribution.

Warning signs include:

– A child was completely excluded
– One child received almost everything
– A surviving partner received little from a substantial estate
– The will predates a major relationship change
– A dependent stepchild received nothing
– The deceased was supporting a parent
– The will gives reasons likely to be disputed
– Family members have already questioned the distribution
– The deceased made contradictory statements about their intentions

An executor should not conceal the death, the grant or the existence of the will in an attempt to run down the clock.

Where a person has an obvious potential claim, obtaining legal advice before distribution is safer than hoping they never discover the estate.

## How a Claim Affects Estate Distribution

A notified claim can delay final payment substantially.

The executor may need to retain the whole estate where:

– The likely claim is large compared with the estate
– Several people may claim
– Liability is disputed
– The estate consists mainly of one indivisible asset
– The claimant seeks provision involving the family home
– Legal costs remain uncertain
– There are related relationship-property or testamentary-promises issues

In other cases, a carefully calculated interim distribution may be possible.

For example, an estate may hold $1.5 million in cash and face a claim that could realistically affect only part of that amount. The executor might distribute a conservative portion while retaining enough for the claim, costs, tax and contingencies.

An interim payment should not be based on the executor’s personal prediction that the claimant will lose. It should be based on a reasoned risk assessment.

Any beneficiary receiving an interim distribution should be told that it is not the final payment and may be affected by the outcome of the proceedings.

## Can the Parties Settle Without a Trial?

Many estate claims are resolved through negotiation or mediation rather than a fully contested hearing.

Settlement can reduce:

– Legal costs
– Delay
– Public exposure of family history
– Emotional strain
– Uncertainty about the outcome
– Damage to ongoing family relationships

The executor should not force a settlement simply to finish the administration. Any agreement must be legally effective and address the interests of all affected parties.

Special safeguards may be required where a beneficiary is a minor, lacks decision-making capacity or is not participating directly.

A settlement may alter the payments required by the will. Once properly documented and approved where necessary, the executor can distribute according to the agreed or ordered outcome.

## Who Pays the Legal Costs?

There is no automatic rule that every claimant’s legal costs will be paid from the estate.

Costs can depend on the conduct of the parties, the strength and nature of the claim, settlement terms and any court order.

Some estate-related legal costs properly incurred by the executor in carrying out their neutral administrative role may be payable from the estate. Costs caused by unreasonable conduct, personal hostility or the executor defending their own beneficial interest may be treated differently.

Executors should ensure that legal invoices distinguish estate-administration work from work performed for an executor personally.

## What Happens When the Claim Ends?

Once a claim has been settled, withdrawn, dismissed or determined, the executor must update the estate accounts.

The executor should confirm:

– The amount payable to the claimant
– Any changes to other beneficiaries’ shares
– Legal costs payable by the estate
– Interest or valuation adjustments
– Tax consequences
– Whether a reserve is still needed
– Whether another claim remains possible

Only after the remaining risks have been addressed should final distribution proceed.

A Family Protection Act claim does not mean the executor has failed. In many cases, the executor could not have prevented the dispute. What matters is how the executor responds.

A careful executor does not decide which family member deserves to win. They preserve the estate, respect the legal timetable, disclose relevant information and ensure that the property remains available until the claim is resolved.

## Frequently Asked Questions

### 1. Who can make a Family Protection Act claim in New Zealand?

Eligible people include a spouse or civil union partner, a qualifying de facto partner, children, grandchildren alive at the date of death, qualifying stepchildren and parents in specified circumstances. Friends and siblings are not automatically entitled to claim under this Act.

### 2. How long does someone have to file a claim?

The ordinary deadline is 12 months from the New Zealand grant of administration, not 12 months from the death. A two-year period applies where an administrator claims on behalf of a person who is not of full age or mental capacity. The court can sometimes extend time before final distribution.

### 3. Must an executor wait 12 months before distributing the estate?

Not automatically. Statutory protection may apply to a properly made distribution after six months from the grant where the executor has not received the relevant notice or court application. However, claims may generally still be filed within 12 months, so the risks must be assessed carefully.

### 4. What should an executor do after receiving notice of a claim?

The executor should preserve the notice, inform co-executors, avoid unsafe distributions, review the estate’s financial position and obtain appropriate legal advice. Valid debts and necessary administration may continue while sufficient property is retained for the dispute.

### 5. Can an executor reject a claim personally?

An executor can request evidence and does not have to accept an unsupported demand. However, the executor should not act as judge of the dispute or distribute the estate in a way that defeats a credible claim. Contested claims may require negotiation or a court decision.

### 6. Does being excluded from a will guarantee a successful claim?

No. The claimant must belong to an eligible category and establish that the deceased failed to make adequate provision in breach of the relevant moral duty. The court considers the estate, family relationships, needs, conduct and competing obligations.

### 7. Can beneficiaries be paid while a claim is unresolved?

An interim distribution may sometimes be possible if enough estate property is retained for the claim, costs, tax and other liabilities. It may be unsafe where the claim could affect most of the estate or the likely outcome is highly uncertain.

### 8. Can a claimant obtain more time after the deadline?

The court may extend the time in some circumstances, but an extension must be sought before the final distribution of the estate. Permission is not guaranteed, so a claimant should not rely on receiving extra time.