The short answer to that question is yes. As Fogarty J says in Martin v Finlayson – “no Court has ever said that an unequal distribution of assets among siblings needs to be morally justified. That is not the law. The law does not contain any moral obligation in that regard at all”.

Background of the case – Martin v Finlayson

This is appeal case brought by Mr Ian Martin regarding a Family Court decision to alter the will of his late mother – Mrs Martin. She and her deceased husband had five children who, at the date the will was made, in June 2011, range from 55 to 60 years. The only significant asset of her estate was her family home which she occupied with one of her two sons, the appellant.

By her will, Mrs Martin divided her estate equally between all her children, subject to a proviso that Mr Martin continue to live in her home rent-free for ten years beyond the date of her death. The original Family Court Judge – (Judge Coyle) amended this with a judgment stating that Mr Martin had the right to occupy until 31 December 2015. In doing so the amendment was to the benefit of the appellant’s three sisters and one brother.

Judge Coyle summarised the original claim as:

“The applicants’ claim a breach of moral duty is advanced on the basis of lack of provision for both proper maintenance and support. They make that claim on the basis that it was unreasonable of their mother to have given Mr Martin a 10 year right of occupancy…and taking into account the monetary benefit to Mr Martin of living rent-free for up to 10 years in the home before they then take their 20% share of the the residuary”.

The family situation

Sometime in 2004 – 2005, the health of Mr and Mrs Martin’s senior’s health began to decline and the family thought it would be a good idea if Mr Martin moved in with his parents to help take care of them and in particular look after them at night time. Mr Martin agreed to this. He lived with his parents until his father died and then continued living in the family home with his mother until she died. During this time, he did not pay for any household expenses – this includes rent/board, power or rates on the property. Mr Martin admitted that he paid $100 a month to help with such expenses and contributed here and there with other such expenses. The monetary saving of living with his mother for seven years and only paying $100 per month steadily was a figure of $105,000. It was put forward that Mr Martin had a truck job and therefore worked long hours and often arrived home late. It was also put to the court that Mr Martin had a partner in Auckland whom he would stay with for several days of the week with his two sisters doing the cooking for Mrs Martin whilst he was away as well as general household duties.

Family protection Act 1955 – s 4(1):

Claims against estate of deceased person for maintenance

  • 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.

The case law guiding the application of this section is as follows:

The Court of Appeal case in Little v Angus – “The enquiry is as to whether there has been a breach of moral duty is judged by the standards of a wise and just testator or testatrix and, if so, what is appropriate to remedy the breach”.

This was revisited in the Court of Appeal case in Williams v Aucutt – “Testamentary freedom remains except to the extent that there has been a failure to make proper provision for the maintenance and support of those who are seen at the date of death as entitled to such maintenance and support”.

Blanchard J’s judgment in Williams v Aucutt

These are the most helpful comments when it comes to understanding the division of estates and/or assets in a will. He comments in his judgment that:

“It is to be remembered that the court is not authorized to re-write a will merely because it may be perceived as being unfair to a family member, and it is not for the beneficiary to have to justify the share which has been given. Rather it is for the claimant to establish that he or she has not received adequate provision for proper maintenance and support….Testators remain at liberty to do what they like with their assets and to treat their children differently or to benefit others once they have made such provisions as are necessary to discharge their moral duty to those entitled to bring claims under the Family Protection Act”.

High Court decision on appeal

The High Court respectfully found that there were two errors in law regarding the original decision held at the Family Court by Judge Coyle.

  • “The question that should have been asked was whether or not a wise and just testatrix, discharging a moral duty as explained by the decisions of the Court of Appeal, could have given the appellant a ten year life interest. Whether a wise and just testatrix would have given the appellant a ten year life interest is a different question and it is an error of law to ask that question. It is never relevant to ask what a wise and testatrix would or would not have done for that is speculative”.
  • “…At the heart of it I think that the Family Court judgment proceeded also on the basis that any discharge of a moral duty required a balancing of relative contributions. That is a second error of law”.



The appeal was allowed and the original wishes of the deceased were upheld. Therefore, Mr Martin was entitled to his original 10 year occupation in the house before it was to be sold and divided equally amongst his other siblings.

What can you take away from this case?

The upshot of it all is that there is no guarantee that the distribution of an estate contained in a family will, will be fair. Even if it isn’t fair, the court has no obligation to rectify this by amending, or trying to “foresee” what the deceased’s wishes would have been.

At Jeremy Sutton Barrister we have years of experience in dealing with the sensitivity of the distribution of estate in family wills. If you are concerned that you have not been treated fairly, contact us and book in an initial consultation today.