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Communtity Law Manual | Wills | Claims by family members under the Family Protection Act

Challenges to your will after you die

Claims by family members under the Family Protection Act

When can someone make a claim under the Family Protection Act?

Under the Family Protection Act, you may be responsible for the proper maintenance of certain close family members who are specified in the Act.

If proper provision is not made for these people in your will, or they are not adequately provided for by the laws of intestacy, they can make a claim in the Family Court or the High Court asking for provision to be made for them out of your estate.

Who can make a claim on my estate under the Act?

Family Protection Act 1955, s 3

A claim under the Act can be made by or on behalf of certain relatives of yours:

  • your spouse or civil union partner
  • a partner who was living in a de facto relationship with you at the date of your death
  • your children (including children of de facto relationships)
  • your grandchildren living at the time of your death
  • your stepchildren who were being maintained wholly or partly (or were legally entitled to be maintained wholly or partly) by you immediately before your death
  • in some circumstances, your parents (for example, if you have no living spouse, civil union partner, de facto partner or children at the time you die).

    Note: For the purposes of a family protection claim, a de facto partner is as defined in the Property (Relationships) Act 1976 (see the chapter “Relationships and break-ups”). Generally, the court will only make an order under the Family Protection Act if the de facto relationship has been for three years or longer. The court can make an order where the relationship was for less than three years when the de facto partner has made a substantial contribution to the relationship, or when there is a child of the relationship, and failure to make an order would result in serious injustice.

Property (Relationships) Act 1976, s 2

What are the grounds for a claim on my estate?

Family Protection Act 1955, s 4

The claimant must show that you had a moral duty to provide for them and that you have breached that duty by not doing so, or not doing so adequately, in your will.

How will the court decide on claims on my estate?

Family Protection Act 1955, ss 4, 11, 11A

The court will consider, amongst other things:

  • whether the claimant has been left anything
  • what your opinions and wishes were
  • the claimant’s age and state of health, their ability to earn a living, and their present financial position
  • the size of your estate
  • the character and conduct of the claimant, including the relationship between you and the claimant
  • what moral duty you had to provide for others
  • whether any other person has a legal or moral duty to maintain the claimant
  • any change in circumstances after your death.

What can the court do for the claimant?

Family Protection Act 1955, s 4

The court can make such provision as it thinks fit for the benefit of a claimant out of your estate, but only to the extent necessary to remedy any breach of moral duty.

Is there a time limit on making a claim?

Family Protection Act 1955, s 9

A claim must be filed in the court within 12 months of the grant of administration. The court can sometimes extend this time, but not if the estate has already been distributed.

What is the procedure?

There are several court documents that must usually be filed to commence proceedings under the Family Protection Act, which include:

  • notice of proceeding
  • statement of claim
  • affidavit of the applicant in support of the claim
  • ex parte application for directions as to service and for representation.

The claimant will need a lawyer to help them make and present their claim.

How can I prevent claims under the Family Protection Act?

Under the Act, the ways that claims can be prevented include the following:

  • Making gifts of property before death – In this way, the property is no longer part of the estate.
  • Trusts – Putting property into a trust during your lifetime (but any outstanding debt that the trust owes you as a result remains in the estate).
  • Making a contract to leave property by will This can then be enforced like any other contract.
  • Written explanation – Leaving a written explanation of why property has been left to certain people. This will not necessarily prevent a claim, but it will help the court to make a decision.
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