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There is no such thing as a simple will, particularly where blended families are now more prevalent.

If a will is challenged the Court will need to consider whether the will is that of a “wise and just” will maker.  To determine this the will maker must provide for those to whom he/she has a moral duty.

The Family Protection Act 1955 is the legislation that provides for family members who feel they have been omitted or unfairly neglected in a deceased person’s will to make a claim.  Eligible claimants include: spouse, civil union partner, de facto partner, children, grandchildren, stepchildren who were being maintained by deceased, parents.

To be successful an eligible claimant must simply show the will maker breached his/her moral duty to provide for him/her and he/she has need.  Need is not just financial but can include need for recognition as a child and family member.

The usual claims revolve around whether a will maker has balanced a need to provide for both spouse/partner (usually a second or third relationship) and the children (usually from the first marriage/relationship).

Each case is decided on its own merits and facts and the court takes into account many different factors.  Claimants do not automatically succeed as there are sometimes cases where the claimant has exercised disentitling conduct.  However, a more usual scenario is where a child has been omitted because the relationship has been severed or damaged many years before the will was made and the will maker dies.  It is the parent’s duty to try and repair a damaged relationship rather than that of the child especially if such damage was caused by the separation of the claimant’s parents.

If a breach of moral duty is established the Court has the power to make whatever order it considers reasonable to repair the breach.

If you feel disentitled and consider that a parent or spouse has breached his/her moral duty towards you we encourage you to make an appointment to see whether you have grounds for bringing a claim.

One consequence of a Family Protection Act claim is that invariably other family members or other beneficiaries named in the will have their inheritance reduced as an outcome of the claim and family rifts are made worse.  There is an emotional cost that needs to be considered before embarking on such a claim.

Contact Neil Evans if you wish to discuss a potential will claim.

Neil Evans
Neil Evans

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