New Zealand’s High Court has delivered a law-changing decision in Bradshaw v Barry concerning the will of a deceased father. The will left his estate, being a half share in his family home, to his wife (the children’s stepmother) and made no provision for his two daughters.

The Court decided to vary the deceased’s will and award the two daughters $80,000 each from their father’s share in the home, valued at $226,250, and created a life interest in the property to the deceased’s wife.

Previously, the law has been that a parent’s duty to provide support to their children should be recognised in the parents will and where no such provision is made an award of 7-18% of the Estate is usually ordered. Thus, making the award of 35 percent of the Estate for each daughter in Barry v Bradshaw a landmark decision.

In considering whether a deceased individual owed a moral duty to provide for another in their will, the Court will consider whether provision ought to have been made in recognition of:

• familial connection between the deceased and applicant;
• misconduct of the deceased and repair of parental neglect;
• contributions and support rendered to the deceased;
• financial need of the applicant; and
• size of the estate.

In Barry v Bradshaw, the Court considered that the eldest daughter deserved to be recognised in the will as she had a significantly close relationship with her father, and any periods of estrangement were due to the father’s misconduct. While the younger daughter did not enjoy as close of a relationship, the Court held that her financial strife made her equally worthy of recognition in her father’s will.

Thus, the High Court has now paved the way to allow for a more significant award to remedy a breach of a parent’s duty in such a case.

If you have any questions about your will or a will under which you feel you should be provided for, please contact Olivia Durston, Law Clerk (03 377 2900 / olivia@mmlaw.co.nz) or any member of our family law team for further help and advice.