Money can’t cure hurt

New Zealand’s family protection legislation was originally introduced to ensure the state wasn’t left to provide for widows, widowers and offspring after the death of a spouse, parent or parents. It allowed surviving spouses and children to claim under the Family Protection Act if the parent failed to make “adequate provision for their proper maintenance and support”.

But lawyers say that over the years, court judgments have extended that approach beyond need, and inserted the concept of “moral duty”.

“You will still hear judges say their task is not to rewrite the will before they rewrite it – so denying the very task they are about to undertake,” says associate professor John Caldwell of the University of Canterbury, a family law expert. “The problem is they have never articulated why, and people really struggle to find the justification, when a person is economically secure, a sum of money should be given to that person.”

He says it is seen as “a bit of psychological support” if the claimant hasn’t received proper recognition of their position in the family. “My argument is that if you feel excluded or not properly treated by the deceased, that’s an emotional hurt that can’t be cured by money.”

If there were to be a new law – and so far, there’s no sign that it’s high on any political agenda – he believes it should rule out claims from adult children “unless there are exceptional, extraordinary circumstances”, the reverse of the default position now.

“If you want to be safe, it probably pays to ensure your adult children, no matter how wealthy they might be, are given 10% of your estate if you want to avoid an unseemly fight after your death. Or you could put it in a trust – or give it all away before you die.”