With Brian Nikora leaving an estate valued at a little under $230,000 his widow from a fifty-five year marriage challenged Family Protection Act claims against the estate made by two daughters from his previous relationship. The Court of Appeal reviewed how all claims could be accommodated, after the High Court effectively awarded Brian’s entire estate to his daughters.
Brian died in 2021. He had been in rest home care for the last thirty months of his life.
His only asset of note was his half share in the home where he had lived with now widowed Sally Barry. Under his will, this half share passed to Sally, giving her full ownership. The two had no children.
The court was told Sally had provided most of the income during their marriage, and had used her redundancy payment to pay off loans.
Family Protection Act claims were made against Brian’s estate by his two daughters from an earlier relationship: Karen and Annmarie. They did not receive any benefit under their father’s will.
The court was told Brian had minimal involvement in their lives. His relationship with their mother ended in the 1960s, before the younger daughter was born. He stopped paying maintenance within a few years.
Mother, and the two daughters, moved to Australia about a decade later.
Children can make a Family Protection Act claim against a parent’s estate where the parent’s will failed to provide ‘proper maintenance and support.’
Courts have given this phrase a double meaning: imposing a moral obligation on parents to recognise parent/child relationships in some manner on their death; plus, requiring parents to assist, on death, an improvident child in financial need.
Judges have a wide discretion as to how these potentially conflicting interests might be reconciled, whilst still seeking to avoid any wholesale re-writing of a person’s will.
This wide discretion has led lawyers to caution clients that the outcome of any Family Protection Act claim can depend on the ‘state of the judge’s digestion.’
In the High Court, Karen and Annmarie were each awarded their father’s half share of the home, with widow Sally given a life interest in this half share allowing her to remain in occupation of the family home. In addition, the judge awarded the two daughters $80,000 each, to be paid on Sally’s death, or sale of the home, whichever occurred earlier.
The Court of Appeal overturned this ruling: allowing widow Sally to retain full ownership of the home; removing any payment to Karen; and awarding a reduced bequest of $30,000 to Annemarie.
Looking ahead, the court said Brian’s estate is relatively modest and his widow’s position requires protection. Brian’s primary duty was to ensure his widow had somewhere to live following his death, particularly given the length of their relationship.
Sally was 77 at date of her husband’s death. It is likely most, if not all, of the equity in their home might be needed to later buy into a retirement village or to pay for rest home care, the court said.
The court was told daughter Karen and her husband are comfortably off financially. She had occasional contact with her father, then regular social contact in his latter years, through telephone calls and facetime messaging. She and her husband had made several visits to see her father New Zealand.
The Court of Appeal ruled that whilst Brian had failed in his moral duty to recognise daughter Karen in his will, the modest size of his estate and the number of competing claims precluded her receiving even a modest Family Protection Act award.
The court was told Annemarie, by contrast, requires financial help. She is divorced, living on an unemployment benefit and in poor health.
She had limited contact with her father after shifting to Australia. She only learnt of her father’s illness prior to his death through her own daughter, who was then living in New Zealand.
Her receipt of the court-ordered $30,000 Family Protection Act compensation is delayed until the earlier of Sally’s death or sale of the home.
Barry v. Bradshaw – Court of Appeal (17.07.25)
25.162