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Reinterpreting the Family Protection Act 1955: the problem with ‘moral duty’

4 April 2024
by Canterbury Legal

In current New Zealand law, "moral duty" refers to the ethical obligation that a will-maker (the person creating a will) has towards their spouse or children. This obligation involves providing for the financial needs of family members in a manner that reflects societal expectations of fairness and familial responsibility. However, the exact definition and scope of "moral duty" are not clearly defined in statutes, leading to ambiguity and interpretation challenges in legal proceedings.

The Family Protection Act 1955 currently requires claimants to prove a will-maker breached a "moral duty" towards family members. In this respect a fundamental test is that “a just, but not unloving, husband or father owes towards his wife or towards his children”. However, the concept of "moral duties" still lacks clarity in law.

The Law Commission proposed limiting court powers under the Act based on public opinion gathered through surveys. These recommendations await parliamentary review, with a high likelihood of adoption (normally an 80% take up rate on average). The commission’s findings show that there is little appetite for the present legislation to stay as it is and that an update is advisable.

It is noted that courts should consider the Commission's findings rather than waiting for legislative changes from parliament.

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