The Right of Independent Adult Children to Receive Testamentary Provision: A Statutory Interpretation and Philosophical Analysis of the New Zealand Position

Should independent adult children be entitled to a share of their parent's estate and on what basis? This thesis seeks to answer that question in the New Zealand context by analysing the judicial approach to claims by such children from a statutory interpretation perspective and then by exploring the philosophical arguments in support of such provision. Since 1900 New Zealand has had legislation allowing certain classes of people, including adult children, to make a claim against an estate, without any qualifying restrictions. Claims can be made if the testator has failed to make “adequate provision for their proper maintenance and support.” The judiciary has not confined the jurisdiction to adult children in dire financial straits or even financial need in the broadest sense. All other circumstances permitting, the Act is also used to make provision for a disinherited child on the basis they deserve recognition as part of the deceased's family. This has been achieved through the application of “support” to include emotional support. The consensus of commentators is that the judiciary is applying the Act incorrectly on the basis that its original target was destitute adult children and those physically unable to maintain themselves. They criticise the broad economic application of “maintenance and support” and its emotional application. None of the criticisms, however, are located in a theory of statutory interpretation. Is the approach wrong from such a perspective? This thesis answers the question by assessing the judicial approach according to the interpretative theory of practical reasoning. Practical reasoning requires a court to take into account a number of considerations - text, legislative history, purpose, and changes in the legal and social climate - to weigh each factor and then to reach a contextual justification for the best answer in the case at hand. The thesis applies the theory to the main cases. It concludes that the concepts of “maintenance and support” are economic and that while the court's broad economic approach to the Act is justified, its application to emotional support is not, the main stumbling block being that it is inconsistent with the legislation's purpose. The thesis then steps out of the statute and asks whether there are valid arguments for testamentary recognition of adult children. Critics of the judicial approach argue not, approaching the matter from the point of testamentary freedom. But recognition of the family bond is a strong theme in the case law, not only in New Zealand but in other jurisdictions with substantially similar legislation. A comparative analysis, together with a wider focus on philosophical reasons for testamentary recognition generally, leads to a conclusion that while the New Zealand judiciary may not be justified from a statutory interpretation perspective, its application of the Act to encompass emotional “support” is not necessarily inappropriate and that the debate in New Zealand has been too narrowly focused on testator's rights. It concludes there are equally valid reasons for testamentary recognition of independent adult children but it is a debate where neither viewpoint holds the dominant position. In the event of law reform, the verdict reached will ultimately be a policy decision for Parliament to make