The family Protection Act 1955 : time for reform?

Abstract

Family protection legislation was introduced in New Zealand to ensure that provision could be made from the estates of deceased relatives for claimants left behind without adequate provision for their proper maintenance and support. The legislation was originally viewed as a means of ensuring people's needs were met by their families rather than charity or the state. The duties enforced by the legislation were largely consistent with people's inter vivos duties. Although the first family protection legislation made no reference to moral duty awards were, and frequently still are, ordered on the basis that the deceased person breached a moral duty by failing to ensure that there was adequate provision for the proper maintenance and support of the claimant. Over the years there have been some legislative changes to the family protection legislation. The courts have attempted to interpret the legislation, and the moral duty that is the lynch pin of the regime, in ways that are in keeping with current realities. But despite the legislative changes and the judiciary's efforts, the duties enforced by the family protection legislation are no longer consistent with people's inter vivos duties. It is now widely acknowledged that it is time to reform the family protection regime. This thesis examines the development of the family protection regime of moral duty concept, from its genesis in the parliamentary debates prior to the enactment of the first family protection legislation, the Testator's Family Maintenance Act 1900, through to its current application under the Family Protection Act 1955. The conclusion is drawn that in the prevailing social environment the family protection regime no longer produces appropriate outcomes. Accordingly, it is time for the family protection legislation to be reformed. This thesis considers various alternatives, reviews the recent New Zealand Law Commission's proposals for reform and suggests further changes that would ensure that the family protection regime is a true reflection of a will-maker's moral duty in the late twentieth century and beyond.