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CLAIMS UNDER THE FAMILY PROTECTION ACT 1955

The following article was written by Brian Burke

Introduction

Family relationships are becoming more complex.  As people age they sometimes make decisions concerning the testamentary disposal of their property which they would not have made in the fullness of their wisdom.  This can commonly result in disputes.

Certain family members are entitled to challenge the provisions of a will under the Family Protection Act 1955 (the FPA).

Who may apply

Section 3 of the FPA provides that the following persons may apply:

  • a spouse or civil union partner of the deceased;
  • a de-facto partner who is living in a de-facto relationship with the deceased at the time of the deceased’s death;
  • children of the deceased;
  • grandchildren of the deceased;
  • step-children of the deceased who were being maintained wholly or partly, or were legally entitled to be maintained wholly or partly, by the deceased immediately before the deceased’s death;
  • parents of the deceased who were being maintained wholly or partly, or who were legally entitled to be maintained wholly or partly, by the deceased immediately before the deceased’s death;
  • parents of the deceased if there is no living spouse, civil union partner, de-facto partner; or child of the marriage.

Not all de-facto partners are entitled to claim under the FPA.  A de-facto partner must either have been living with the deceased three years prior to the deceased’s death in order to qualify unless the Court is satisfied that there is a child of the de-facto relationship or the de-facto partner has made a substantial contribution to the de-facto relationship and the failure to make an order would result in serious injustice to the de-facto partner.

The grounds for an application

Section 4(1) of the FPA provides that if under the terms of a will or on intestacy, adequate provision is not available from the deceased’s estate for the proper maintenance and support of the persons who can claim under the Act, the Court may, at its discretion, order that any provision that the Court thinks fit be made out of the deceased estate for all or any of those persons.

The words “proper maintenance and support” have been given a wide interpretation by the Courts.  The enquiry is whether there has been a breach of “moral duty” judged by the standards of a wise and just deceased and, if so, what is appropriate to remedy the breach.

It is not essential that the claimant show financial need.  The Courts have recognised that a child’s path through life is supported not simply by financial provisions to meet economic needs and contingencies but also by recognition of belonging to the family and having been an important part in the overall life of the deceased.

Each case under the FPA is decided on its own particular circumstances but a consideration of the leading cases demonstrates that the following factors will be relevant to the deceased’s moral duty and any subsequent award:

  • the size of the estate;
  • competing moral claims from other claimants;
  • the age of the claimant;
  • the health of the claimant;
  • the property of the claimant;
  • the income of the claimant;
  • the advantages the claimant has received from the deceased during the deceased’s lifetime;
  • contributions to the deceased’s estate by the claimant;
  • the relationship of the deceased and the claimant including any estrangement and reconciliation;
  • whether the claimant has any dependents;
  • the previous standard of living of the claimant;
  • the manner in which the deceased’s estate was acquired;
  • any disentitling conduct on the part of the claimant.

Claims under the FPA are often made by the deceased’s spouse or by the deceased’s children however as discussed above there is a much wider pool of possible claimants. 

Adequate provision for “proper maintenance and support” does not equate with fairness.  A deceased does not, for instance, have to leave his or her estate equally to his or her children.

A review of the cases demonstrates that the most important factors will be the size of the estate and the competing moral claims of other family members.  When considering competing moral claims, the financial position of each potential claimant is always highly relevant.

Commentators have pointed out that given the infinite variety of fact situations, there can be no firm benchmark of percentages for awards.  In some cases a small award might be justified where there are, for example, substantial competing moral claims from others in need.  On the other hand a large award may be appropriate if there is a claimant in serious need and there are no other competing moral claims.

The claim process

It is important to bear in mind that claims under the FPA have time limits.  Claims must be brought within 12 months of the date of the grant of probate or letters of administration.  Although a claimant may make an application for leave to the Court to bring a FPA claim after this period, leave is not always granted and in some cases no longer possible.

Further, an administrator may distribute the estate after 6 months from the date of the grant of probate without incurring any personal liability for an early distribution.  It is preferable to make a claim within 6 months of the grant of probate or administration in order to avoid this occurring as estate assets may no longer be available to meet a potential award after this time.

The majority of FPA claims are held in the Family Court.  Most claims are settled by way of informal negotiations between the parties with the assistance of their lawyers or in a more formal mediation or judicial settlement conference. 

On rare occasions FPA claims do proceed to a Court hearing.  These are carried out in a non-threatening environment.  Cross examination is rarely allowed.  FPA cases are usually dealt with by the parties’ lawyers on the affidavit evidence without the need for the parties to give oral evidence in Court.

Summary

It is always important that advice is taken as soon as practicable should a person wish to challenge or contest a will in order to avoid unnecessary costs and disappointment.

© Copyright Harmans Lawyers 2018