Despite increasing numbers of blended families, the High Court refused to budge from a long-standing rule that assets disposed of under agreed mutual wills are not available for any claim by surviving children under the Family Protection Act.
Associate Judge Taylor struck out a family protection claim by the late Brian Monk’s four children, with his children concerned that his widow, who was Mr Monk’s third wife, would spend up large, leaving them with nothing.
In their separate wills, both Mr Monk and his widow stated each agreed not to change their wills, dividing their assets, on the death of whoever survived the other, equally between all children in their blended family. Mr Monk has four children from earlier marriages; Ms Monk two children from her previous marriage.
On Mr Monk’s death in 2023, assets passed to his widow.
Her will promises that on her death her assets will be divided equally between the six children.
In the High Court, Mr Monks’ natural children alleged his widow is profligate, likely to spend ‘their’ inheritance whilst her children will remain comfortably off with expected inheritances from their grandmother.
Mr Monk’s children sued in the High Court, asking for an immediate payout under the Family Protection Act.
This Act allows family to claim against a parent’s estate.
Enacted as social legislation, it was originally intended to ensure that close family, who are in need, receive proper maintenance and support on their parent’s death.
The Act has received a liberal interpretation, resulting in court rulings rearranging inheritances as between surviving children.
Judge Taylor struck out their claim.
Court rulings stretching back nearly a century make it clear that assets passing under agreed mutual wills cannot be subject to a Family Protection Act claim, he said.
Across the Tasman, Australia’s highest court has overturned the rule.
In the New Zealand High Court, Judge Taylor was unwilling to do the same. It is for the Court of Appeal or the Supreme Court as our higher courts to decide, he ruled.
re Estate of Brian Thomas Monk – High Court (5.12.25)
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