The Family Protection Act (“the Act”) is utilised by certain classes of family members who have an issue with the extent of their inheritance; either due to being left out entirely or where they perceive the share received is less than what is reasonable and fair because the deceased has breached their moral duty to that person to adequately provide for their maintenance and support.
An application is made to either the Family Court or the High Court. That said, there are only a limited class of people that can make a claim under the Act; being:
- a spouse or civil union partner;
- a de facto partner who was living with the deceased at the time of death;
- children of the deceased;
- grandchildren of the deceased;
- stepchildren; and
- parents of the deceased.
There are of course some parameters to each of these classes of people who may wish to bring a claim against an estate. Claims can be settled informally with the help of lawyers via negotiation, however, some claims will end up in the Family Court.
The courts will consider whether there has been a breach by the deceased of their moral duty towards the class of person/persons making the claim and then what, if any, monetary award will be made from the estate to repair such breach. Of course, each case will vary greatly and any awards will be based on the facts of the case; and the courts have a fairly wide discretion given the variety of case law in this area.
Focusing only on the category of persons 1 to 3 above: there is a requirement for the applicant to establish that there has been a failure to provide for their maintenance and support under the deceased’s will. It will then be assessed whether the claim is for both maintenance and support or just support.
If you wish to make a claim, it must be filed in the courts within 12 months of the grant of probate. There are a number of forms to be completed, namely a notice of proceeding, statement of claim, affidavit of the applicant in support of the claim and ‘ex parte application’ for directions as to service and for representation. A lawyer will assist you drafting these in accordance with the specific High Court rules.
Whilst we can never fully protect an estate from having a claim made against it; we can try to limit the fallout from any claim made. As a will maker, it is best to remember your moral duty to provide for your family members. Careful consideration should be given to the circumstances of a situation where you may wish to leave someone out of your will; remembering that they could bring a claim against your estate under this Act. Some will makers consider leaving something, rather than nothing, which could be considered as fulfilling your moral duty and rebuking a claim against your estate. You can also make a written explanation of why your estate has been left to certain people (and not others) and keep this in your deeds with your will.
For more information on the class of people 4 to 6, please contact your lawyer direct as each category has specific rules and restrictions relating to them.
