Harmans Lawyers
27 July 2023

Challenging Wills – the Family Protection Act

All Articles & News, Litigation and Dispute Resolution, Seniors Law

Family relationships have become more complex over the years.  As a result challenges to Wills have also become more common.  One way of challenging a Will is under the Family Protection Act 1955.  A spouse, de facto partner, child or grandchild of a deceased person is entitled to claim provision from an estate if adequate provision has not been made for their proper maintenance and support.  The Courts often refer to this as a failure of “a moral duty” on the part of the deceased person.  In rare circumstances, where a stepchild or parent was being financially supported by the deceased person they can also make a claim.

Claims are often made by adult children. A breach of moral duty is judged by the standards of a wise and just deceased at the time of his or her passing.  The Courts adopt a broad approach and each case is decided on its own particular facts.  Financial need and the health of the child making the claim are often the most important factors. However even if an adult child is in good health and in a good financial position they may still have a valid claim. The Courts point out that a child’s path through life is recognised in a Will not only through financial provision to meet financial needs but also to recognise a child as belonging to the family and of having been an important part in the overall life of the deceased person.

There are other factors which a Court will consider. The relationship which the child had with the deceased person will always be important. However the fact that a child was estranged from their deceased parent does not disqualify a child from making a claim. Sometimes the Court will find that it was up to the parent to be the “bigger person” and mend the relationship.

Grandchildren are not usually considered by the Court as requiring an award unless there are special circumstances such as their own parent dying before the deceased grandparent.

The Court is not restricted to particular considerations and must be aware of changing social attitudes over time. Due to the infinite variety of fact situations there can be no firm benchmark percentages for claims by surviving children. Where there is a large estate the Court is more likely to make a larger award. However where a child is well off and in good health awards are typically modest.

A person making a Will may wish to consider persons beyond family members. Bearing in mind that a Will is often the last message that a person will give to their loved ones careful consideration is required particularly if children are to be treated unequally. Written reasons often help in this regard.

There are other ways in which spouses, children and non-family members can challenge wills. As family relationships become more complex Wills need to be drafted to deal with those complexities. A carefully crafted Will by a lawyer can minimise the risks of a later challenge.

The information contained in this site is provided for informational purposes only, and should not be construed as legal advice on any subject matter.