Family relationships are becoming more complex. After a person has passed away certain family members are entitled to challenge the provisions of a will under the Family Protection Act 1955 (the FPA) if adequate provision has not been made for them.
Who may apply
The FPA sets out who is eligible to challenge a will. This includes a spouse, de-facto partner, child or grandchild. A de-facto partner of less than three years, a stepchild or a parent of the deceased can also make a claim in exceptional circumstances.
The grounds for an application
The FPA provides that if adequate provision is not made from the deceased’s estate for the proper maintenance and support of the claimant the Court may order provision out of a deceased’s estate for the claimant. The Court will consider whether there has been a breach of a moral duty by the deceased to provide for the claimant. Factors such as the size of the estate, the health and income of the claimant and the relationship between the claimant and the deceased during the deceased’s lifetime are relevant.
Adequate provision for “proper maintenance and support” does not equate with fairness. A deceased does not have to leave their estate equally to their children or all of their estate to a spouse or partner. When considering competing moral claims matters such as the financial position of each potential claimant is highly relevant.
The claim process
Claims must be brought within 12 months of the date of the grant of probate or letters of administration with very few exceptions. From the claimant’s point of view it is preferable to make a claim within 6 months to avoid an early distribution of assets.
Many claims are settled by way of informal negotiations between parties without the necessity for Court proceedings. In some cases claims do proceed to Court but most are resolved in mediation or a judicial settlement conference without the need for a full hearing. Claims are usually determined by the Courts based on affidavit evidence but in some cases oral evidence is required. This can be stressful for all the parties involved and should be a last resort.
It is always important that advice is taken as soon as practicable should a person wish to challenge or contest a will in order to avoid unnecessary costs and disappointment. For those making wills it is important to take legal advice and to make wills in a way which will avoid family disputes later on.
If you are seeking advice on the Family Protection Act or the making of a will please do feel free to contact us at Harmans Lawyers to discuss.
