Excluded from a Will? How to Claim under the Family Protection Act

We tend to think of Wills as full, free, and final decisions about how someone’s assets are to be distributed after they die. But sometimes Wills, whether deliberately or not, fail to make adequate provision for close family members.

In such cases, someone who has been left out of a Will may feel that their exclusion is unjust, especially if they consider the deceased had a moral obligation to help provide for them after they are gone.

Fortunately, there are potential remedies available.

If you feel you have been unfairly excluded from or inadequately provided for by a deceased family member’s Will, you can make a claim against their estate under the Family Protection Act 1955 (FPA).

The Family Protection Act 1955 (FPA) states that the deceased might have a duty to maintain certain close family members. Family members who may make a claim under the FPA are:

• Spouses or civil union partners of the deceased
• De facto partners of the deceased
• Children of the deceased
• Grandchildren of the deceased
• Stepchildren of the deceased who were fully or partly supported, or had a legal right to be supported, by the deceased before death
• Parents of the deceased

However, to be successful in an FPA claim, you must establish that the deceased breached their duty to make adequate provision for your proper maintenance and support. The legislation recognises the need for a broad approach to determine what constitutes “proper support and maintenance”, which will depend on the circumstances of your case.

Factors that the court may consider include:

• What the Will provides for you
• The deceased’s opinions and wishes
• Your age and state of health, ability to earn a living, and present financial position
• The size of the estate
• Your character and conduct, including your relationship with the deceased
• What duty the deceased had to provide for others
• Whether any other person has a duty to maintain you
• Any change in circumstances after the death of the deceased

When courts decide how much money or property to award someone making a claim against and estate, they try to be careful and fair. They want to make sure the person claiming gets what they truly need, but they also want to respect the wishes of the deceased person about how their assets should be distributed. Any award will depend on the individual circumstances of the case, and there is a wide range of dispensations that may be possible.

Any claim under the Family Protection Act must be brought within 12 months of the date of the grant of probate or letters of administration. However, it is advisable to bring the claim within 6 months to avoid the risk of assets being distributed.

If you feel you have been unfairly excluded from or inadequately provided for by a deceased family member’s Will or if you are a beneficiary of a Will and someone else is making a claim against the estate which may affect your entitlements, it is important to seek legal advice as soon as possible.

At Freebairn and Hehir Lawyers we are experts in all matters relating to Wills and estates. If you want any advice about a claim relating to a family member’s estate, don’t hesitate to get in touch.