If children are dissatisfied with their inheritance when a parent dies, the Family Protection Act 1955 can provide them with redress. Under that Act the Court can make order further provision for children (and other family members) if it finds that the deceased did not discharge his or her moral obligation owed to the claimant. As the Judge stated in Rippey v Hunt [2014] NZHC 1694 at para 81:
"The law recognises the principle of testamentary freedom. There is no guaranteed right of inheritance for any member of a deceased person’s family, and certainly no presumption that all children must be treated equally… The role of the Court is not to “remake” a deceased person’s will, but only to disturb it to the minimum extent necessary to address a breach of moral duty, if one has been established. Whether there has been such a breach will turn on the particular circumstances before the Court. The test is not one of “fairness”. If there has been no breach of moral duty a Court will not intervene, even if a will otherwise appears to be “unfair” to an objective bystander."
Paul Rippey’s claim
Anita and Ken Rippey raised five children together on the family farm. When Mrs Rippey died she left her estate, which primarily consisted of her interest in the family farm, equally to four of her five children. In her will Mrs Rippey stated that she had excluded her son Paul because he had been supported by her for many years and would continue to receive these benefits into the foreseeable future.
Paul challenged his mother’s will under the Family Protection Act 1955. Paul claimed his mother had breached her moral duty to provide for him and sought an equal share of his mother’s estate.
The High Court Judge considered the various arguments raised by Paul and his evidence to support them – that he was of limited financial means; that he worked on the farm and cared for his parents, in particular he cared for his father during many years of ill health; that he used a substantial portion of the money gifted to him by his parents for family expenses and not for his own purposes; that gifts and assistance had been given to his siblings; and that gifts from Mr Rippey were irrelevant in determining whether Mrs Rippey had breached her moral duty.
The Judge rejected Paul’s claim and found no breach of moral duty. Paul had already received a fair share of his mother’s estate because of the gifts, benefits and support received by him from both his parents during their lifetimes (including the right to live rent free on the farm for 31 years). The Judge stated that, even if Paul had been successful with his claim, the necessity to sell the farm to pay Paul his share despite his siblings desire to retain it was not a relevant factor in deciding whether Mrs Rippey had breached her moral duty. The Judge also stated that the profitable cannabis operation Paul had run on the farm despite his parents’ disapproval would not have disentitled him if he had otherwise been successful in his claim.
Court cases determining disputes over wills are not uncommon. Their outcome can be uncertain because they depend on the particular family circumstances. The cases can be long, drawn out and costly – both financially and emotionally. They are not for the faint hearted.
Please email me at [email protected] with your ideas for future articles. Keep an eye out for next month's column, where I will discuss another relevant rural legal issue.
Barbara McDermott is a partner of Norris Ward McKinnon, specialising in commercial and rural law. With offices in Hamilton and Huntly, we have friendly, expert legal advisors ready to help you with your business and personal legal matters.