The Family Court recently issued its judgment in the case of Christiansen v Jackson and Dodd [2024] NZFC 2717. This case concerned a Family Protection Act 1955 (FPA) claim by Ms. Christiansen against the estate of her deceased de facto partner, Mr. Dodd. Mr. Dodd’s will made no provision for Ms. Christiansen.

It is common in such cases for the claimant to receive an award of 10% or more of the estate in acknowledgement of the deceased’s moral duty to provide for the claimant’s proper maintenance and support. Unusually, in this case, the Family Court declined to make any award.

The background facts

Mr. Dodd was in a de facto relationship for seven years with Ms. Christiansen, when he died at the age of 55. Both of them had had prior relationships and had accumulated assets.

Mr. Dodd was also survived by an adult son from a previous relationship. This is an increasingly common scenario, as people live longer and tend to have multiple relationships over their lifetimes.

Mr. Dodd’s will left his entire estate to his son. Ms. Christiansen made a claim under the FPA for a share of Mr. Dodd’s estate.

Who can make a claim under the FPA?

A claim under the FPA can be made against the estate of a deceased person by or on behalf of any of the following:

• a widow, widower or surviving civil union partner;
• a de facto partner living with the deceased at their death;
• the deceased’s children, and grandchildren;
• a stepchild of the deceased who was being maintained wholly or partly or was legally entitled to be wholly or partly maintained by the deceased immediately before death; and
• a parent of the deceased, in certain circumstances.

A surviving spouse or partner has the strongest potential claim against the estate (or defence against another’s claim). A child of the deceased is generally next in order of priority.

The test is whether the deceased made adequate provision for the claimant’s proper maintenance and support

The test under the FPA is whether the deceased has made adequate provision from the deceased’s estate for the proper maintenance and support of a person (claimant), taking into account the claimant’s means and obligations and all other relevant circumstances.

This requires the court to apply a three-stage test:

• whether the deceased had a moral duty to the claimant;
• having found that a moral duty was owed, whether the deceased breached the moral duty; and
• whether it is appropriate to exercise the court’s discretion to make an award and, if so, what would be adequate provision for the claimant’s proper maintenance and support.

The starting point is that, where the deceased left a will, testamentary freedom prevails, except to the extent that the deceased has failed to make adequate provision for the maintenance and support of those entitled to it. The court should do no more than the minimum to correct the deceased’s failure.

‘Proper’ maintenance is more than merely-adequate maintenance. ‘Support’ has a wider meaning than ‘maintenance’ and may extend to an acknowledgement (by way of provision from the estate) that a person belongs to the deceased’s family and was an important part of the deceased’s overall life. The factual context is relevant when determining what is ‘proper support’. The size of the estate and competing claims are relevant considerations.

Mr. Dodd did not breach his moral duty to his de facto partner

Although the deceased had a moral duty to the claimant, Ms. Christiansen, she failed at the second stage. The Family Court found that there was no breach of Mr. Dodd’s moral duty to Ms. Christiansen and dismissed her claim, for the following reasons:

• The couple had both had prior relationships. Although not expressly relied upon, the judge noted the High Court’s view in Matthews v Phochai [2020] NZHC 3455 that it is common for older couples with children from prior relationships to want their property to pass to their bloodline and not, ultimately, to the partner’s bloodline.
• Mr. Dodd had an adult son who had limited financial means, other than the inheritance under his late father’s will i.e. there was a strong competing claim against the estate.
• Mr. Dodd and Ms. Christiansen had entered into an agreement contracting out of the Property (Relationships) Act 1976 (Contracting Out Agreement) less than two and a half years before Mr. Dodd died. The Contracting Out Agreement:
  • recorded the couple’s agreement for the division of property if they separated or one of them died, on a ‘what’s mine is mine and what’s yours is yours’ basis;
  • provided that, if Mr. Dodd died, Ms. Christiansen could occupy their family home (which belonged to Mr. Dodd) for one year after his death, provided she met the outgoings; and
  • provided that, on death, each of their estates would pass in accordance with their wills.
• As required in law, Mr. Dodd and Ms. Christiansen each received independent legal advice before entering into the Contracting Out Agreement.
• Mr. Dodd reviewed his will, at his lawyer’s request, after the Contracting Out Agreement was made and did not change it (so presumably the will continued to reflect his testamentary wishes).
• Ms. Christiansen had assets in her own name that were approximately equal to the value of Mr. Dodd’s estate. She had a home and other assets, continued to work, and was in good health.

The existence of a current Contracting Out Agreement, and equivalent levels of wealth were relevant to the outcome

The author suspects that, if:

• the couple had not had a current Contracting Out Agreement, setting out their view of a fair division of their property on death; and/or
• Ms. Christiansen’s personal wealth had been disproportionately less than Mr. Dodd’s, particularly if she did not have a home to live in,

the Family Court would have found a breach under the FPA requiring an award from the estate.

It is not possible, under a contracting out agreement, to contract out of a spouse’s or partner’s right to make a future FPA claim, although the New Zealand Law Commission has proposed that it should be possible.

However, the Court gave significant weight to the Contracting Out Agreement as a record of the couple’s intentions regarding the fair division of their property and their estates, after receiving independent legal advice. Although this is a Family Court decision and could be appealed, the outcome suggests that a current contracting out agreement could be a useful tool for limiting exposure to future FPA claims.

This alert was written by Suzanne Smith, an Associate in our Private Wealth team.