Lou Newman v Oscar Newman [2016] NZFC 2543

Published 13 July 2016

Contested will — Family Protection Act 1955 — Little v Angus [1981] 1 NZLR 126 (CA) — Williams v Aucutt [2000] 2 NZLR 479. The applicant claimed under the Family Protection Act 1955. Little and Williams provide that to obtain relief under the Act the applicant must establish that the testator owed a moral duty and failed to provide adequate support in the will to fulfil that duty. The Judge accepted the applicant’s argument, deciding that further provision should be made from the estate. The testatrix’s (will-maker’s) will provided $1000 for each of her three grandchildren; the residue of the estate was subject to a life interest in favour of her two sons (the applicant and first respondent). On the cessation of life interests the net residue would be divided amongst the grandchildren. The will-maker appeared to skip a generation in giving her legacy as she believed her sons were alcoholic and wasteful. The applicant acknowledged that he used to be a heavy drinker but says this was no longer the case. He was not wealthy and as the son of the will-maker he was entitled to consideration for support under his mother’s moral duty to provide. The argument was made that similar provision should be available for the brother as he was in no better position financially. **Note: names have been changed to comply with legal requirements.