In New Zealand, the term “family protection” refers to the law now contained in the Family Protection Act of 1955 whereby the Supreme Court may make provision out of the estate of the deceased person for the proper maintenance and support of certain members of his family for whom he has failed to provide adequately.
Nearly all legal systems that allow property to be disposed of by will nevertheless restrict testators' powers to benefit strangers at the expense of their immediate family. Mediaeval England was no exception, but the protection that the law then gave to widows and children gradually disappeared under the influence of individualism. The law came to make a fetish of absolute freedom of testamentary disposition, and this freedom included the right to leave wife and children penniless.
The obvious injustice of this led in New Zealand to the passing of the Testators Family Maintenance Act of 1900, an enactment which has attracted worldwide attention. Its novelty and importance lay not in its limitation on testamentary freedom – as has been said, this is almost universal – but in its approach to the problem. Most other systems, for example, Roman and Scots law, set aside a proportion of the estate that cannot be willed away from the family. The New Zealand legislation, on the other hand, leaves it to the Court to award to an applicant as much or as little out of the estate as it thinks appropriate in the circumstances. Without directly interfering with testamentary freedom it enables the Court to override a will if the deceased has not carried out his moral duty to his family. Since 1939 the Act has also applied to cases where a person dies intestate and the statutory rules of distribution do not give a fair result.
The approach adopted in 1900 was foreshadowed in an 1877 Act which enabled illegitimate children under 14 to apply for maintenance out of the estate of deceased parents. There was also a provision in the Native Land Court Act of 1894 that where a Maori devised land to someone other than his successor and, in the Court's opinion, that successor would not, without that land, have sufficient for his support, the Court might award the successor as much of that land as was necessary.
The original Testators Family Maintenance Act was introduced by Robert McNab, then a private member of Parliament representing Mataura. It attracted little opposition in Parliament, its passage being assisted by the modest claims of its supporters. A man was obliged to maintain his wife and children in his lifetime, and the object of the Bill, it was said, was to do for them after a testator's death what the Destitute Persons Act did in his lifetime.
Whatever the promoters of the Act may have intended, the Courts interpreted it generously, and it soon became much more than an Act to relieve destitution. It would be impossible in this article to discuss the principles the Court follows in deciding applications under the Family Protection Act. The following passage from a judgment of Sir John Salmond is, however, accepted as an authoritative summary of the Act's scope.
The provision which the Court may properly make is that which a just and wise father would have thought it his moral duty to make had he been fully aware of all the relevant circumstances. If it is manifest that the testator has, whether consciously or inadvertently, failed to perform this duty, it is the right and duty of the Court to perform it for him, by making such alterations in his testamentary dispositions as may be adequate but no more than adequate for this purpose.
The family protection legislation has been an unqualified success. It originally applied only to widows, widowers, and legitimate children. From 1936, however, it was successively extended to illegitimate and adopted children, and parents, grandchildren, and stepchildren, in certain cases. It has, moreover, been followed to a greater or less extent in all Australian States, in some Canadian provinces, and in England.
by Bruce James Cameron, B.A., LL.M., Legal Adviser, Department of Justice, Wellington.
- The Law relating to Family Protection in New Zealand, Stephens, A. C. (1957).