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That's it! You're out of the will!

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Kelvin Campbell
01-Feb-2017
Asset planning, Civil Law, Commercial Law, Estates

When a person dies they normally leave a will which directs their trustees to distribute their estate in accordance with their wishes as expressed in their last will. Sometimes a close relative is left out of a will or is provided a sum that is quite inadequate compared to their needs.

What can the person do about it? They may want to consult a lawyer to discuss whether they can make a claim against the deceased’s estate under the Family Protection Act 1955. This Act is quite unique as it allows defined persons to challenge the last will of a deceased if the deceased has failed in their moral duty to make adequate provision for those person’s entitled to make a claim against the estate. A claim must be made within 12 months of the will being admitted to probate.

Only the following defined persons may make a claim under the Act:

1. The spouse or civil union partner of the deceased; or 2. A de facto partner who was living with the deceased at the time of death; or 3. A child of the deceased; or 4. A grandchild of the deceased; or 5. A step child of the deceased who was being maintained (wholly or partly) by the deceased immediately before the date of death; or 6. A parent of the deceased who was being maintained (wholly or partly) by the deceased immediately before the date of death, or a parent when there are no other eligible claimants against the estate.

The Courts have accepted that a person may leave more money to one relative than another under a will but the Family Protection Act 1955 provides a back-up layer of protection to those defined persons who have been inadequately provided for or completely left out of a will, for no good reason.

What amounts to a good reason to leave a defined person out of a will? There are two types of conduct that may prevent a claimant from making a successful claim against the deceased’s estate:

1. Outrageous conduct by the claimant against the deceased, and

2.  Distinct and meaningful periods of estrangement from the deceased brought about by the claimant.

In most cases a claimant will not be disentitled to make a claim (which simply means being not allowed to make a claim) unless they have behaved in a way that is very abusive (bordering on criminal behaviour) towards the deceased, or the claimant caused very long periods of having no contact with the deceased which upset the deceased.

If a person is successful in making a claim against an estate they will be awarded an amount that remedies the moral default of the deceased in leaving them out of the will or for making inadequate provision for them from the deceased’s estate. There are no set figures or percentages that are applied but a Court is required to weigh up all of the competing claims against the estate including those provided for under the will before making a decision on what, if any, amount to award the claimant.