Family Protection Act 1955

1: Short Title
This Act may be cited as the Family Protection Act 1955.
2: Interpretation
1: In this Act, unless the context otherwise requires,— administration administrator section 2(1) application child of a marriage, civil union, or de facto relationship court section 3A de facto partner section 2 de facto relationship section 2 stepchild
a: who is not a child of the deceased, but is a child of—
i: the deceased's spouse or civil union partner; or
ii: a de facto partner who was living in a de facto relationship with the deceased at the date of his or her death and in whose favour the court can make an order under this Act; and
b: who was living at the date on which the deceased—
i: married that spouse; or
ii: entered into the civil union with that civil union partner; or
iii: became a party to that de facto relationship.
2: This Act shall apply in all cases, whether the deceased person died before or after the commencement of this Act: provided that no distribution of any part of the estate of a deceased person that has been made before the commencement of this Act shall be disturbed in favour of any person by reason of any application or order made under this Act if it could not have been disturbed in favour of that person by reason of any application or order made under the enactments repealed by this Act.
3:
4: For the purposes of this Act no real or personal property that is held upon trust for any of the beneficiaries in the estate of any deceased person who died after 7 October 1939 (being the date of the passing of section 23
5: For the purposes of this Act the estate of any deceased person shall be deemed to include all property which is the subject of any donatio mortis causa provided that—
a: no claim in respect of any property to which this subsection relates shall lie against the administrator by any person who (under any order of the court under this Act) becomes entitled to the property or to any benefit therefrom; and
b: in all other respects the provisions of this Act and of sections 30A and 30B of the Administration Act 1952 (which sections were inserted by section 2 of the Administration Amendment Act 1960) 1908 No 60 s 32 1939 No 39 s 23 Section 2(1) replaced 1 February 2002 section 4 Family Protection Amendment Act 2001 Section 2(1) child of a de facto relationship repealed 26 April 2005 section 7 Relationships (Statutory References) Act 2005 Section 2(1) child of a marriage repealed 26 April 2005 section 7 Relationships (Statutory References) Act 2005 Section 2(1) child of a marriage, civil union, or de facto relationship inserted 26 April 2005 section 7 Relationships (Statutory References) Act 2005 Section 2(1) stepchild replaced 26 April 2005 section 7 Relationships (Statutory References) Act 2005 Section 2(3) repealed 1 January 1970 section 12(2) Status of Children Act 1969 Section 2(5) proviso paragraph (b) amended
3: Persons entitled to claim under Act
1: An application for provision out of the estate of any deceased person may be made under this Act by or on behalf of all or any of the following persons:
a: the spouse or civil union partner of the deceased:
aa: a de facto partner who was living in a de facto relationship with the deceased at the date of his or her death:
b: the children of the deceased:
c: the grandchildren of the deceased living at his death:
d: the stepchildren of the deceased who were being maintained wholly or partly or were legally entitled to be maintained wholly or partly by the deceased immediately before his death:
e: the parents of the deceased.
1A: A parent of the deceased may not make a claim under this Act unless—
a: the parent was being maintained wholly or partly, or was legally entitled to be maintained wholly or partly, by the deceased immediately before his or her death; or
b: at the date of the claim, none of the following is living:
i: the spouse or civil union partner of the deceased:
ii: a de facto partner of the deceased in whose favour the court can make an order under this Act:
iii: a child of the marriage, civil union, or de facto relationship of the deceased.
2: In considering any application by a grandchild of any deceased person for provision out of the estate of that person, the court, in considering the moral duty of the deceased at the date of his death, shall have regard to all the circumstances of the case, and shall have regard to any provision made by the deceased, or by the court in pursuance of this Act, in favour of either or both of the grandchild's parents. 1908 No 60 s 33(1) 1936 No 58 s 26 1939 No 39 s 22 1943 No 20 s 14 1947 No 60 s 15 Section 3(1)﻿(aa) inserted 1 February 2002 section 5(1) Family Protection Amendment Act 2001 Section 3(1)﻿(a) replaced 26 April 2005 section 7 Relationships (Statutory References) Act 2005 Section 3(1)﻿(b) replaced 1 January 1970 section 12(2) Status of Children Act 1969 Section 3(1)﻿(c) replaced 1 January 1970 section 12(2) Status of Children Act 1969 Section 3(1)﻿(e) replaced 26 April 2005 section 7 Relationships (Statutory References) Act 2005 Section 3(1A) inserted 26 April 2005 section 7 Relationships (Statutory References) Act 2005 Section 3(2) inserted 15 November 1967 Family Protection Amendment Act 1967
3A: Courts to have concurrent jurisdiction
1: Subject to the succeeding provisions of this section, the High Court, the Maori Land Court, and the Family Court
2: The Family Court
2A: An application under this Act must be made to—
a: the Family Court or the High Court, unless paragraph (b) applies:
b: the Maori Land Court, if the application relates only to Maori freehold land.
3: The court to which an application is made may refer any proceedings resulting from the application, or any question in those proceedings, to any other court referred to in subsection (2A) if it considers that the proceedings or question would be more appropriately dealt with by the other court.
3A: The court may refer the proceedings or question on its own initiative or on application by a party to the proceedings.
4: The High Court, upon application by any party to any proceedings pending under this Act in the Family Court or the Maori Land Court the Family Court or the Maori Land Court (as the case may be)
5: Any appeal from a decision of the Family Court or the Maori Land Court under this Act must be made to the High Court.
6: In this section, Maori freehold land
a: has the meaning given by section 4
b: includes shares in a Maori incorporation under that Act; and
c: includes the proceeds of alienation of anything referred to in paragraph (a) or (b). Section 3A inserted 1 July 1992 Family Protection Amendment Act 1991 Section 3A(1) amended 6 February 2021 section 86(1) Te Ture Whenua Maori (Succession, Dispute Resolution, and Related Matters) Amendment Act 2020 Section 3A(2) amended 1 March 2017 section 261 District Court Act 2016 Section 3A(2A) inserted 6 February 2021 section 86(2) Te Ture Whenua Maori (Succession, Dispute Resolution, and Related Matters) Amendment Act 2020 Section 3A(3) replaced 6 February 2021 section 86(3) Te Ture Whenua Maori (Succession, Dispute Resolution, and Related Matters) Amendment Act 2020 Section 3A(3A) inserted 6 February 2021 section 86(3) Te Ture Whenua Maori (Succession, Dispute Resolution, and Related Matters) Amendment Act 2020 Section 3A(4) amended 6 February 2021 section 86(4) Te Ture Whenua Maori (Succession, Dispute Resolution, and Related Matters) Amendment Act 2020 Section 3A(4) amended 6 February 2021 section 86(5) Te Ture Whenua Maori (Succession, Dispute Resolution, and Related Matters) Amendment Act 2020 Section 3A(4) amended 1 March 2017 section 261 District Court Act 2016 Section 3A(5) inserted 6 February 2021 section 86(6) Te Ture Whenua Maori (Succession, Dispute Resolution, and Related Matters) Amendment Act 2020 Section 3A(6) inserted 6 February 2021 section 86(6) Te Ture Whenua Maori (Succession, Dispute Resolution, and Related Matters) Amendment Act 2020
4: Claims against estate of deceased person for maintenance
1: If any person (referred to in this Act as the deceased
1A: Subsection (1) overrides the Administration Act 1969 section 4A
2: Where an application has been filed on behalf of any person, it may be treated by the court as an application on behalf of all persons who might apply, and as regards the question of limitation it shall be deemed to be an application on behalf of all persons on whom the application is served and all persons whom the court has directed shall be represented by persons on whom the application is served.
3: An application must be served on the following persons:
a: the spouse or civil union partner of the deceased:
b: a de facto partner who was living in a de facto relationship with the deceased at the date of his or her death:
c: a child of a marriage, civil union, or de facto relationship of the deceased, or a child of a marriage, civil union, or de facto relationship of any such child:
d: a person entitled to apply who the Registrar of the court considers, in his or her discretion, ought to be served because there are special circumstances rendering that desirable:
e: a person entitled to apply who the court considers, in its discretion, ought to be served because there are special circumstances rendering that desirable.
3A: Where an application has been filed, orders for representation must be made in respect of the following persons:
a: the persons referred to in subsection (3)﻿(a) to (c); and
b: any other person entitled to apply who the court considers, in its discretion, ought to be represented because there are special circumstances rendering that desirable.
3B: Except as provided in subsections (3) and (3A), it is not necessary to—
a: serve an application on any person; or
b: make provision for the representation of any person on an application.
4: An administrator of the estate of the deceased may apply on behalf of any person who is not of full age or mental capacity in any case where the person might apply, or may apply to the court for advice or directions as to whether he ought so to apply; and, in the latter case, the court may treat the application as an application on behalf of the person for the purpose of avoiding the effect of limitation. 1908 No 60 s 33(1), (7), (10) Section 4(1) replaced 1 February 2002 section 6(1) Family Protection Amendment Act 2001 Section 4(1A) inserted 1 February 2002 section 6(1) Family Protection Amendment Act 2001 Section 4(3) replaced 18 May 2009 section 4 Family Protection Amendment Act 2008 Section 4(3A) inserted 18 May 2009 section 4 Family Protection Amendment Act 2008 Section 4(3B) inserted 18 May 2009 section 4 Family Protection Amendment Act 2008
4A: Restrictions on orders in favour of certain de facto partners
1: This section applies to a de facto partner who was living in a de facto relationship with the deceased at the date of his or her death if the de facto relationship is a relationship of short duration as defined in section 2
2: The court cannot make an order under this Act in favour of a de facto partner to whom this section applies unless—
a: the court is satisfied—
i: that there is a child of the de facto relationship; or
ii: that the de facto partner has made a substantial contribution to the de facto relationship; and
b: the court is satisfied that failure to make the order would result in serious injustice to the de facto partner.
3: In subsection (2), child of the de facto relationship contribution section 2 Section 4A inserted 1 February 2002 section 7 Family Protection Amendment Act 2001
5: Terms of order
1: The court may attach such conditions to any order under this Act as it thinks fit or may refuse to make such an order in favour of any person whose character or conduct is or has been such as in the opinion of the court to disentitle him to the benefit of such an order.
2: In making any such order the court may, if it thinks fit, order that the provision may consist of a lump sum or a periodical or other payment. 1908 No 60 s 33(2), (3)
6: Provision for class fund
1: Without in any way restricting the powers of the court under this Act, it is hereby declared that the court may order that any amount specified in the order shall be set aside out of the estate and held on trust as a class fund for the benefit of 2 or more persons specified in the order (being persons for whom provision may be made under this Act).
2: Where any amount is ordered to be held on trust as a class fund for any persons under subsection (1), that amount shall be invested and the trustee may at his discretion, but subject to such directions and conditions as the court may give or impose, apply the income and capital of that amount or so much thereof as the trustee from time to time thinks fit for or towards the maintenance or education (including past maintenance or education provided after the death of the deceased) or the advancement or benefit of those persons or of any 1 or more of them to the exclusion of the other or others of them in such shares and proportions and generally in such manner as the trustee from time to time thinks fit; and may so apply the income and capital of that amount notwithstanding that only 1 of those persons remains alive.
3: For the purposes of this section the term trustee
4: If the trustee is not the administrator, then the court may give such directions as it thinks fit relating to the payment to the trustee of the amount which is to be held on trust as a class fund and may exercise any power under section 81
7: Incidence of payments ordered
1: The incidence of the payment or payments ordered shall, unless the court otherwise determines, fall rateably upon the whole estate of the deceased, or, in cases where the authority of the court does not extend or cannot directly or indirectly be made to extend to the whole estate, then to so much thereof as is subject to the authority of the court.
2: The court shall have power to exonerate any part of the deceased's estate from the incidence of any such order, after hearing such of the parties who may be affected by the exoneration as it thinks necessary, and may for that purpose direct any administrator to represent, or appoint any person to represent, any such party.
3: The court shall have power at any time to fix a periodical payment or lump sum to be paid by any beneficiary in the estate of the deceased to represent, or in commutation of, such proportion of the sum ordered to be paid as falls upon the portion of the estate in which he is interested, and to exonerate that portion from further liability, and to direct in what manner the periodical payment shall be secured, and to whom the lump sum shall be paid, and in what manner it shall be invested for the benefit of the person to whom the commuted payment was payable.
4: Upon an order being made under this Act the portion of the estate comprised therein or affected thereby shall be held subject to the provisions of the order. 1908 No 60 s 33(4)–(6), (8)
8: Mortgages and assignments of provisions under orders
No mortgage, charge, or assignment of any kind whatsoever which is given of or over any provision out of the estate of any deceased person granted by any order of the court under this Act and which is made before the order of the court is made shall be of any force, validity, or effect; and no such mortgage, charge, or assignment made after the order of the court is made shall be of any force, validity, or effect unless it is made with the permission of the court. 1908 No 60 s 33(12)
9: Limitation of proceedings
1: No application in respect of any estate shall be heard by the court at the instance of a party claiming the benefit of this Act unless the application is made before the expiration of the prescribed period specified in subsection (2): provided that the time for making an application may be extended for a further period by the court, after hearing such of the parties affected as the court thinks necessary; and this power shall extend to cases where the time for applying has already expired, including cases where it expired before the commencement of this Act: provided also that no such extension shall be granted unless the application for extension is made before the final distribution of the estate, and no distribution of any part of the estate made before the administrator receives notice that the application for extension has been made to the court and after every notice (if any) of an intention to make an application has lapsed in accordance with subsection (6) of section 30A of the Administration Act 1952
2: The prescribed period mentioned in this section shall be,—
a: in the case of an application by an administrator made on behalf of a person who is not of full age or mental capacity, a period of 2 years from the date of the grant in New Zealand of administration in the estate; and
b: in the case of any other application, a period of 12 months from the date of the grant in New Zealand of administration in the estate. 1908 No 60 s 33(9), (11) 1921–22 No 33 s 2 Section 9(1) amended 25 October 1960 Administration Amendment Act 1960
10: Power of Administrator to distribute before limitation period has expired
Section 10 repealed 25 October 1960 Administration Amendment Act 1960
11: Evidence as to deceased's reasons for dispositions
Without restricting the evidence which is admissible or the matters which may be taken into account on any application under this Act, it is hereby declared that on any such application the court may have regard to the deceased's reasons, so far as they are ascertainable, for making the dispositions made by his will, or for not making any provision or any further provision, as the case may be, for any person; and the court may accept such evidence of those reasons as it considers sufficient, whether or not the same would be otherwise admissible in a court of law.
11A: Duty of administrator to assist court
On any application under this Act it shall be the duty of the administrator to place before the court all relevant information in his possession concerning the financial affairs of the estate and the deceased's reasons for making the dispositions made by his will or for not making any provision or any further provision, as the case may be, for any person: provided that the duty imposed by this section shall not extend so as to require the administrator to place any such information before the court if it is known to him by reason only of its having come to his knowledge in circumstances which impose an obligation, whether legal or moral, on the administrator not to disclose it, and its disclosure in connection with any application under this Act would be a breach of that obligation. Section 11A inserted 30 September 1959 Family Protection Amendment Act 1959
12: Variation of orders
1: Where (whether before or after the commencement of this Act) the court has ordered periodical payments, or has ordered any part of the estate or a lump sum to be held as a class fund or invested for the benefit of any person or persons, it shall have power to inquire whether at any subsequent date any party deriving benefit under its order is still living or has become possessed of or entitled to provisions for his proper maintenance or support and into the adequacy of the provisions, or whether the provisions made by its order for any such party remain adequate, and may increase or reduce the provisions so made or discharge, vary, or suspend its order, or make such other order as is just in the circumstances.
2: Where an order has been made under this Act in respect of the estate of any deceased person and application is subsequently made in respect of that estate on behalf of any person who is not bound by the order, the court may vary the previous order in such manner as it thinks fit: provided that the previous order shall not be varied so as to disturb any distribution made pursuant thereto if anything in this Act prevents the distribution from being disturbed: provided also that, without limiting the provisions of sections 30A and 30B of the Administration Act 1952 (which sections were inserted by section 2 of the Administration Amendment Act 1960) 1908 No 60 s 33(13) Section 12(2) second proviso amended 15 November 1967 Family Protection Amendment Act 1967
13: Certain benefits under the Social Security Act 1938 to be disregarded
In making any order under this Act for provision out of the estate of a deceased person, the court shall disregard any benefit under Part 2 of the Social Security Act 1938 (other than a superannuation benefit, a miner's benefit, or a family benefit) which is or may become payable to any person. 1950 No 49 s 18(3)
14: Duty on estate
Section 14 repealed 1 January 1969 section 100(1) Estate and Gift Duties Act 1968
15: Right of appeal
1AA: This subsection applies to a decision of the Family Court or the District Court
a: make or refuse to make an order; or
b: dismiss the proceedings; or
c: otherwise finally determine the proceedings.
1: A party to proceedings in which there is made a decision to which subsection (1A) applies, or any other person prejudicially affected by the decision, may appeal to the High Court against the decision.
1A: The High Court Rules 2016 sections 126 to 130 section 124
2: On the ex parte section 126(1)
2A: Subsection (2) overrides subsection (1A).
3: The provisions of the Senior Courts Act 2016
4:
5: The High Court or (as the case may be) the Court of Appeal may, in its discretion, rehear the whole or any part of the evidence, or may receive further evidence, if it thinks that the interests of justice so require. Section 15 replaced 1 July 1992 Family Protection Amendment Act 1991 Section 15(1AA) inserted 24 November 2003 section 4 District Courts Amendment Act 2002 Section 15(1AA) amended 1 March 2017 section 261 District Court Act 2016 Section 15(1) replaced 24 November 2003 section 4 District Courts Amendment Act 2002 Section 15(1A) replaced 1 March 2017 section 261 District Court Act 2016 Section 15(2) replaced 24 November 2003 section 4 District Courts Amendment Act 2002 Section 15(2) amended 1 March 2017 section 261 District Court Act 2016 Section 15(2A) inserted 24 November 2003 section 4 District Courts Amendment Act 2002 Section 15(3) amended 1 March 2017 section 183(b) Senior Courts Act 2016 Section 15(4) repealed 1 January 2004 section 48(2) Supreme Court Act 2003
16: Repeals and savings
1: The enactments specified in the Schedule
2: Without limiting the provisions of the Interpretation Act 1999
3: All the provisions of sections 1 to 31 of the Family Protection Act 1908 Part 1 paragraph (c) of section 17 Section 16(2) amended 1 November 1999 section 38(1) Interpretation Act 1999