New Zealand: Family Protection Act: (un)enforceable contracting out provisions


The situation is seen all too often. In contemplation of spousal separation, or in preparation for death, individuals and members of their immediate family will often enter into inter vivos deeds of separation or deeds of family arrangement. The purpose for entering into these deeds often involves managing sensitive interfamilial relationships.

A common thread that often runs through both inter vivos deeds of separation and deeds of family arrangement are clauses that purport to exclude or prevent an estate being challenged under the Family Protection Act 1955 (FPA). This note looks at the dichotomy between an individual's moral obligation to provide for their family and the contractual freedom to deal with property as and when the proprietor of that property so decides. In order to do so we will: (a) briefly discuss the relevant provisions and rationale behind the FPA; (b) summarise the relevant case law in New Zealand; and (c) comment on the current state of the law vis-á-vis anti-avoidance measures and what you can do to protect your assets from an FPA claim in the current legal climate.

The impetus for this note does not arise from new or exciting developments in the law. Instead it gains its relevance from the not insignificant amount of practitioners that persist (either inadvertently or advertently) with inserting clauses into inter vivos deeds of arrangement that purport to exclude an individual otherwise entitled from claiming under the FPA.


The FPA establishes a discretionary power of the Court to provide for the proper maintenance and support of entitled individuals if the terms of a deceased's will or the rules of intestacy fail to adequately provide for that family member. Section 4(1) states:

Claims against estate of deceased person for maintenance

If any person (referred to in this Act as the deceased) dies, whether testate or intestate, and in terms of his or her will or as a result of his or her intestacy adequate provision is not available from his or her estate for the proper maintenance and support of the persons by whom or on whose behalf application may be made under this Act, the court may, at its discretion on application so made, order that any provision the court thinks fit be made out of the deceased's estate for all or any of those persons.

Section 3(1) details who is to be considered an entitled individual for the purposes of the FPA:

Persons entitled to claim under Act

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 [subject to certain restrictions listed in s 3(1A)].

The underlying purpose of the FPA is to allow the Court an inherent discretion to uphold a parent's moral duty to recognise close members of their family as being valued and appreciated (see for example Williams v Aucutt [2000] 2 NZLR 479 (CA)). This has been described as an important declaration of State policy designed to protect the financially dependent. To this end, the cases have consistently held that the Court should go no further than is necessary to repair a breach of this moral duty by making adequate provision for maintenance and support.

The case law

The High Court decision in Gardiner v Boag [1923] NZLR 739 (HC) concerned the separation of a husband and wife and a deed of arrangement that sought to prevent the wife, on death of the husband, from bringing any proceedings under the Family Protection Act 1908 (the progenitor of the FPA). The husband did not provide for the wife or their children in his will. Chapman J came to the conclusion that (at 746):

A certain jurisdiction is given to the Court, implying a right in the person described in the [Family Protection Act 1908] to take advantage of it, and it is found that that right cannot be surrendered or abrogated. That right is to appeal to the discretion of the Court; and in my opinion the policy of the State requires that no contract shall prevent the party from making the application or the Court from adjudicating on it. The wording of the statute being plain and the purpose being manifest, I hold that the provision is paramount, and consequently that the covenant is void.

A full bench of the High Court in Parish v Parish [1924] NZLR 307 (HC) agreed with Gardiner and added (at 314):

The object of [the Family Protection Act 1908] is to prevent a testator, when exercising his testamentary power, from leaving his wife and children without proper maintenance and support. That is a matter which concerns not only the wife and children of the testator, but also the public, for if the wife and children are left destitute they may become dependent on charitable aid and in this way a burden on the State.

This rationale establishing that persons entitled to claim under the FPA may not contract out of their rights prior to the death of the testator has been accepted as being correct in subsequent decisions in the FPA era (see for example Re Churchill [1978] 1 NZLR 744 (HC) at 750). Perhaps the dearth of modern authority is evidence enough that the decisions in the mid to late twentieth century contain sound law and are of equal application today.


It is clear that a contractual clause that has the intended effect of preventing a party from exercising their rights under the FPA is void and unenforceable (either absolutely or at the applicant's discretion – see discussion in Public Trust v Dillion [1940] NZLR 874 (HC)). This very likely includes not only contracts that purport to contract out, but also contracts that purport to waive accrued rights and deeds of forbearance. The policy basis for prohibiting contracting out is both obvious and sound. The FPA (and its progenitor) is a social piece of legislation designed to have a broad remedial effect. If the parties could simply contract out of the legislation its raison de'être would be fatally eroded.

It is important to note that the cases leave open the possibility for testators or future testators to enter into agreements that purport to discharge his or her obligations under the FPA. In cases such as this the focus of the Court (if its jurisdiction is invoked) will likely be to make a judicial determination of whether the agreement discharges the duty created by the FPA. But this still requires the imprimatur of the Court.

There are, of course, other practical means of avoiding the effect of the FPA, including:

  • Transferring property into a trust.
  • Transferring property to be held in joint tenancy.
  • Disposing property by way of a gifting process prior to death.

It is the apparent ease that an individual is able to flout the FPA regime by utilising any of the above options that is most concerning. The FPA as it currently stands is increasingly becoming a toothless piece of legislation whose underlying purpose has been abdicated by the removal of gift duty and the simplicity in which dispositions can be made from an estate into an inter vivos trust or otherwise gifted away. This can have the effect of gutting any estate without affording recourse to those individuals that are displaced (see for example Re Henderson HC Wellington CP 433/92 6 April 1993).

There have been calls for anti-avoidance measures to be implemented in New Zealand. This is not a novel concept. Both England (Inheritance (Provision for Family and Dependants) Act 1975) and New South Wales (Succession Act 2006) have adopted reasonably successful anti-avoidance legislation that acts in a somewhat analogous way to the voidable transactions regime under the Companies Act 1993. That is, certain dispositions from an estate fund within a set period of time up until a testator's death can be used to satisfy equivalent FPA claims. To date New Zealand has not shown a particularly big appetite for such a change. This is surprising considering the big bite testators continue to take out of their estates, to the detriment of those individuals the FPA looks to protect.


It is worth noting that inter vivos arrangements attempting to exclude the FPA may be treated quite differently than similar arrangements entered into after the death of the testator. In the leading New Zealand text Law of Family Protection and Testamentary Promises (3rd ed, LexisNexis, Wellington, 2004) the author suggests that no sound reason remains why an applicant should not be bound to a compromise excluding an FPA claim after death (see his reasons at pp 94-95). This is despite a line of authority that seems to suggest otherwise (see Hooker v Guardian Trust & Executors Company of New Zealand [1927] GLR 536; Public Trust v Dillion [1940] NZLR 874 (HC); Re Julso [1975] 2 NZLR 536 (HC); and Clarke v Goulding [2017] NZHC 1326).

Download article in PDF format

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions