Family Protection

When a close relative, usually a parent or partner, passes away leaving little or nothing to their child or widow/er the Family Protection Act 1955 enables that person to make a claim for provision in the will. Such claims are based upon the notion that the testator owes the claimant a "moral duty" whether financial or sentimental or both, to adequately provide for the claimant in his or her will. The concept of "moral duty", developed through case law, is determined using the standard of a "wise and just testator".

In making a decision the Court will have regard to a number of relevant factors including, the conduct of the claimant during the testator's lifetime, the size of the estate, the age and financial position of the claimant as well as any other case specific issues such as health of the claimant or any financial assistance given to the claimant by the testator prior to his or her death.

Once a breach of moral duty has been established, the Court has the discretion to alter the will to the extent necessary to remedy the breach. The Court must balance the objective of remedying a breach of moral duty as against the testator's discretion to provide for beneficiaries in his or her will.

Who can make a claim under the Family Protection Act?

  • The spouse or civil union partner of the deceased
  • A de facto partner who was living in a de facto relationship with the deceased at the date of his or her death
  • The children of the deceased
  • The grandchildren of the deceased living at his death
  • The stepchildren 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 his death
  • The parents of the deceased in certain circumstances.

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