Family Protection Act 1955

4 Claims against estate of deceased person for maintenance

(1)

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.

(1A)

Subsection (1) overrides the Administration Act 1969, but is subject to section 4A.

(2)

Where an application has been filed on behalf of any person, it may be treated by the court as an application on behalf of all persons who might apply, and as regards the question of limitation it shall be deemed to be an application on behalf of all persons on whom the application is served and all persons whom the court has directed shall be represented by persons on whom the application is served.

(3)

An application must be served on the following persons:

(a)

the spouse or civil union partner of the deceased:

(b)

a de facto partner who was living in a de facto relationship with the deceased at the date of his or her death:

(c)

a child of a marriage, civil union, or de facto relationship of the deceased, or a child of a marriage, civil union, or de facto relationship of any such child:

(d)

a person entitled to apply who the Registrar of the court considers, in his or her discretion, ought to be served because there are special circumstances rendering that desirable:

(e)

a person entitled to apply who the court considers, in its discretion, ought to be served because there are special circumstances rendering that desirable.

(3A)

Where an application has been filed, orders for representation must be made in respect of the following persons:

(a)

the persons referred to in subsection (3)(a) to (c); and

(b)

any other person entitled to apply who the court considers, in its discretion, ought to be represented because there are special circumstances rendering that desirable.

(3B)

Except as provided in subsections (3) and (3A), it is not necessary to—

(a)

serve an application on any person; or

(b)

make provision for the representation of any person on an application.

(4)

An administrator of the estate of the deceased may apply on behalf of any person who is not of full age or mental capacity in any case where the person might apply, or may apply to the court for advice or directions as to whether he ought so to apply; and, in the latter case, the court may treat the application as an application on behalf of the person for the purpose of avoiding the effect of limitation.

Compare: 1908 No 60 s 33(1), (7), (10)

Section 4(1): replaced, on 1 February 2002 (applying only in respect of the estates of persons who die on or after that date), by section 6(1) of the Family Protection Amendment Act 2001 (2001 No 8).

Section 4(1A): inserted, on 1 February 2002 (applying only in respect of the estates of persons who die on or after that date), by section 6(1) of the Family Protection Amendment Act 2001 (2001 No 8).

Section 4(3): replaced, on 18 May 2009, by section 4 of the Family Protection Amendment Act 2008 (2008 No 80).

Section 4(3A): inserted, on 18 May 2009, by section 4 of the Family Protection Amendment Act 2008 (2008 No 80).

Section 4(3B): inserted, on 18 May 2009, by section 4 of the Family Protection Amendment Act 2008 (2008 No 80).