Challenging a will
If the will is unfair to family members
Who can make a claim under the Family Protection Act?
The Family Protection Act 1955 states the deceased might have a moral duty to provide for (“maintain”) certain close family members.
You can only make a claim under the Act if you are, or are claiming on behalf of:
- a spouse or civil union partner of the deceased
- a partner who was in a de facto relationship with the deceased at the date of their death
- a child of the deceased (including a child of a de facto relationship)
- a grandchild of the deceased, if you were alive at the time of their death
- a stepchild of the deceased, if you had been (or you were legally entitled to have been) provided for (“maintained”) wholly or partly by the deceased immediately before their death
- in some circumstances, a parent of the deceased (for example, if they had no living spouse, civil union partner, de facto partner or children at the time of their death).
What will I have to prove to the court?
To make a claim under the Act, you must show that:
- you are one of the specified family members above, and
- the deceased had a moral duty to provide for you, and either:
- if there’s a will, the deceased breached that duty by not providing for you (or not doing so adequately) in their will, or
- if there’s no will, the laws of intestacy don’t, or don’t adequately, provide for you.
What factors will the court consider?
The court will consider, amongst other things:
- whether you’ve been left anything
- what the deceased’s opinions and wishes were
- your age and state of health, your ability to earn a living, and your present financial position
- the size of the estate
- your character and conduct, including the relationship between you and the deceased
- what moral duty the deceased had to provide for others
- whether any other person has a legal or moral duty to maintain you
- any change in circumstances after the death of the deceased.
What happens if my claim is successful?
If the court decides that the current distribution of the estate would be a breach of moral duty, it can restribute the estate to remedy that breach.
The court is generally reluctant to override the will or the laws of intestacy. The court will only make the minimum changes necessary to remedy the breach.
Is there a time limit on making a claim?
You must file a claim in 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?
To start proceedings under the Family Protection Act, you will need to file the following court documents:
- notice of proceeding
- statement of claim
- a sworn statement (an affidavit)
- an application for instructions from the court as to who you need to give your application to (in other words, who you need to “serve” the application on).
It’s recommended that you get a lawyer to help make and present your claim.