FAMILY PROTECTION ACT

What does Family Protection Act do?

As Leo Tolstoy wrote, “All happy families are alike; each unhappy family is unhappy in its own way.”

Sadly unhappiness is often carried through after death by will-makers leaving wills which do not adequately provide for family members left behind.

However the Family Protection Act  gives the Court a wide discretion in estate litigation cases to make orders departing from the terms of the last will of a deceased person so that his or her will provides for the “proper maintenance and support” of eligible family members who have made claims against the estate.

The Court has consistently interpreted the words, “proper maintenance and support” in estate litigation cases as imposing a “moral duty” on a will maker to make provision for the proper maintenance and support of eligible family members.

Who can make a claim under the Family Protection Act 1955?

A claim under the Family Protection Act in estate litigation cases can only be made by:

  • the spouse or civil union partner of the deceased;
  • the de facto partner of the deceased living with the deceased in a de facto relationship at the time of the death of the deceased;
  • children of the deceased (including illegitimate and adopted children);
  • stepchildren of the deceased who were legally financially dependent upon the deceased;
  • grandchildren of the deceased;
  • parents of a deceased person if there is no living spouse, civil union partner, de-facto partner or child of the deceased or who were legally financially dependent upon the deceased.
What is the time limit for bringing a claim under the Family Protection Act?

A claim under the Family Protection Act must be filed with the Court within 12 months of the date of the grant of probate or letters of administration.  The Court, in will dispute cases, does have a discretion to extend this period but by far the best practice is to bring the claim within the initial 12 month period.

Importantly an administrator may distribute the deceased’s estate within 6 months of the date of the grant of probate without incurring any personal liability for an early distribution if he or she has not received notice of an intention to make a claim under the Family Protection Act. If notice of an intention to make a claim under the Family Protection Act has been given to the administrator, the claim needs to be filed with the Court within 3 months after the notice of intention to make a claim is given to the administrator to prevent the estate being distributed without the administrator being personal liability for having done so.

For more information on time limits, click here.

What is the extent of a will-maker’s moral duty?

A will-maker does not have to be “loving” but she or he does need to be “wise and just” in making adequate provision in her or his last will for the proper maintenance and support of eligible claimants. The standard is an objective one and is influenced by social attitudes which may change from time to time.

The Court dealing with a Family Protection Act claim in estate litigation cases must consider whether the will-maker has breached his or her moral duty as at the date of the death of the deceased taking into account all relevant circumstances.

Generally speaking the Court is required to take a conservative approach in assessing claims under the Family Protection Act in will dispute cases. This means that the Court needs to be careful about being overly generous with the will-maker’s property in making orders in satisfaction of any claims.

What factors affect the extent of the will-maker’s moral duty?

The factors will differ in each in estate litigation case but invariably the Court will look at the size of the estate, the nature and strength of the relationship between the will-maker and the person making the claim, the presence or absence of other competing claims, contributions made by the person making the claim to building up the estate of the will-maker and the presence or absence of economic need of the claimant as it existed at the date of the death of the will-maker.

What factors negatively affect a claim under the Family Protection Act?

Periods of estrangement and family rifts are not uncommon in families. In Family Protection Act estate litigation cases estrangement can potentially weaken the moral duty owed by the will-maker to the person making the claim. However the Court will take a ‘real world’ look at the underlying reasons for any estrangement including whether the deceased had partial or full responsibility for it.

If the deceased was responsible for the estrangement, this may reverse the situation and increase the moral duty that is owed by the deceased to the person making the claim.

What about disentitling conduct under the Family Protection Act?

Under the Family Protection Act the Court may, in will dispute cases, refuse to make an order where there has been disentitling conduct by the person making the claim against the deceased’s estate.

Disentitling conduct is serious misconduct. The threshold for serious misconduct is relatively high including physical or verbal abuse, deliberate malice directed towards the will-maker or committing serious criminal offences with no remorse. Therefore in practice it is comparatively rare for the Court to find that there has been disentitling conduct.

What about claims by spouses or partners under the Family Protection Act?

The paramount duty of the will-maker is firstly to the widow or de facto partner of the deceased. However the provisions of the Property (Relationships) Act 1976 dealing with relationship property after death play an important part in considering claims by widows or de facto partners. This is because a surviving spouse or partner can elect to bring a claim under the Property (Relationships) Act 1976 for a division of the relationship property of the couple. In practice this means that it is now less likely that significant capital sums will be awarded to a widow or de facto partner claimant who has received half of the couple’s relationship property so long as the Court is satisfied that overall the surviving spouse or partner is adequately provided for.

However it is important to note that in will dispute cases nothing in the Property (Relationships) Act prevents a surviving spouse or partner making a claim under the Family Protection Act. Therefore a surviving spouse or partner can exercise his or her rights under the Property (Relationships) Act and still ask the Court to “top up” that right by making a claim under the Family Protection Act 1955.

When assessing the financial position of the spouse or partner, the Court will look at the current and expected future financial position of the claimant, even though the moral duty is traditionally assessed at the date of the testator’s death.  The Court is also likely to take into account the lifestyle enjoyed by the spouse or partner during the relationship with the deceased.

Contributions made by a spouse or partner to building up the assets of the deceased’s estate or to the relationship are also highly relevant when assessing the strength of the moral duty owed by a will-maker to a spouse or partner.

 

Family Protection Act 1955 case notes

Here you will find case summaries of how the Court has dealt with actual Family Protection Act 1955 claims.