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CHALLENGING A WILL UNDER THE FAMILY PROTECTION ACT 1955

At least once per week I get a phone call from a child saying their parent has left them out of their will.  This is extremely upsetting for children because being excluded from the will gives a feeling of also being excluded from their family.  There is nothing more hurtful than being rejected from your own family.  Thankfully, there is provision under the Family Protection Act 1955 (FPA) for children to seek a share of their parent’s estate.

This post will delve into the details of bringing a claim against an estate under the FPA, exploring who can apply, the grounds for making a claim, important factors considered by the court, and the claim process itself.

WHO MAY APPLY UNDER THE FPA

The FPA allows certain family members to challenge the provisions of a will if they have been left out and believe that adequate provision has not been made for their proper maintenance and support. The eligible applicants include:

• Spouse or civil union partner of the deceased
• De facto partner living in a de facto relationship at the time of the deceased’s death
• Children and grandchildren of the deceased
• Stepchildren who were being maintained by the deceased
• Parents of the deceased who were being maintained by the deceased
• Parents of the deceased if there is no living spouse, partner, or child

GROUNDS FOR MAKING AN APPLICATION

Section 4(1) of the FPA empowers the court to order provisions from the estate if proper maintenance and support are not adequately provided for the eligible applicants. The term “proper maintenance and support” is interpreted broadly by the courts, with a focus on assessing whether there has been a breach of moral duty as determined by a wise and just deceased. This consideration is not solely financial, as the court recognizes the importance of belonging and familial relationships.

FACTORS CONSIDERED BY THE COURT

When evaluating a claim under the FPA, the court takes various factors into account, including:

• The size of the estate
• Competing moral claims from other potential claimants
• The age and health of the claimant
• The claimant’s financial circumstances, property, and income
• Past benefits received from the deceased
• Contributions made by the claimant to the estate
• The nature of the relationship between the deceased and the claimant
• Any estrangement and subsequent reconciliation
• Dependents of the claimant
• Claimant’s previous standard of living
• Manner of acquiring the deceased’s estate
• Any disentitling conduct by the claimant

CLAIM PROCESS AND TIME LIMITS

It’s important to note that claims under the FPA have time limits. Claims must be brought within 12 months of the grant of probate or letters of administration. While there is a possibility of applying for an extension, it’s not always granted. Moreover, estate distribution is allowed after 6 months from the grant of probate, potentially affecting the availability of assets for an award.

CONCLUSION

Challenging a will under the Family Protection Act 1955 provides a legal avenue for certain family members to seek their rightful share of an estate when they’ve been left out of a will. The considerations go beyond financial need, focusing on the concept of proper maintenance and support. The court weighs various factors to determine the fairness of the distribution, while the claim process involves time limits and potential complexities. Seeking legal advice promptly is crucial for anyone considering a claim under the FPA to ensure the best chance of success while avoiding unnecessary costs and complications.

Remember, the information in this post serves only as general information and not as legal advice. Consulting with a legal professional is essential when dealing with specific cases and circumstances.