Proper Maintenance and Support

Renee Dey

Blended families are certainly becoming more common as society broadens its boundaries when it comes to the nexus of “the nuclear family”.  People are also recognising that they have a shared obligation to care for our environment. This is causing people to shift their social conscious into thinking long term about their ability to assist community endeavours or Charities in their efforts to make the world a sustainable place.

Often a Willmaker will want to skip leaving provision to a spouse, or gift funds to a Charity over their children, or treat their children with sometimes extreme inequality. In the first instance, these should already be ‘red flags’ for the drafter. The instructions are not usually coming from a place of malice, but we should nevertheless probe for the reason. While the essence of the law holds tight to a Willmaker’s right to choose how to distribute their wealth, what cannot be ignored is their equitable obligation to provide proper maintenance and support to their family.

Claims for insufficient support are usually made pursuant to Section 4 of Family Protection Act 1955. The terminology “proper maintenance and support” comes from three key Court of Appeal decisions; Williams v Aucutt, Auckland City Mission v Brown and Henry v Henry, with confirmation from Wylie v Wylie  that the same “proper maintenance and support” obligation is owed to a spouse as it is to a child.

This prompts two key questions;

  1. What does ‘proper maintenance and support’ mean exactly and;
  2. In what way can ‘proper maintenance and support’ be translated into testamentary terms which would sufficiently discharge the obligation?

The Courts take a board but conservative view as to what proper maintenance and support would be, and takes into account the actual circumstances of the Claimant at the date the Willmaker passed. In their assessment, the Court will take into account matters such as family recognition and other social and ethical factors independent of pure wealth. What is certain is that the Courts will firstly assess if sufficient maintenance has been provided or not; and if not, they will make an assessment of what would be the minimum required in order to remedy the failure. The end goal of this cautious approach is to only remedy the deficiency so as not to lose sight of the Willmaker’s right to decide how their estate should be divided. 

Breaking down the meaning of  proper maintenance and support’ is not the easiest of tasks as the three key words ‘proper’, ‘maintenance’ and ‘support’ are all so subjective and in almost every case relative to the value of the property in the estate. Many a wise voice from the bench has suggested that proper maintenance and support really comes down to the need of the claimant to be recognised as a valuable member of that family. The idea of ‘proper maintenance’ tends to look at the financial provision to the claimant in creating a sense of increased comfort, while ‘support’ follows closer to the idea of the claimant having been an important part in the life of the deceased and having a close connection to the family. Therefore, a large Estate does not necessarily guarantee a Claimant a large interest, particularly if the Claimant is already financially established.  Similarly, if a Claimant has been estranged from the family, sufficient provision may be discharged by a smaller legacy or a bequest of an heirloom confirming the relationship to the family.

Now, one could read through an enormous amount of commentary and still not find the magic figures for discharging the obligation. However, it would seem from a purely pecuniary point of view, somewhere between 10% and 20% seems about sufficient to discharge the maintenance obligation. Again this is no guarantee as each case is decided on its own merits.

Therefore, when drafting a Will and providing advice, the closer a beneficiary is to a 10% share in the Estate, there should be another form of recognition by way of a bequest of an heirloom, or item which was special to the Willmaker. This would then begin to satisfy the family recognition element of ‘support’, and be a step in further preventing a possible claim being pursued on the Estate.

Lastly, it would be prudent to specially state within the Will why the Willmaker had made the conscious decision for unequal sharing, reduced maintenance, or a gift to Charity. Any statement does not need to be lengthy but point out that the Willmaker is aware of their obligation and considered not only the economic factors but also the elements of social, ethical and family connection for any beneficiary. In this way we are protecting ourselves should we be called to attest in the future, but also giving the Willmaker the best chance of their Will being upheld in the event of a claim.