Wills – Family Protection Actions
Fri Oct. 3rd 2014
It is important that people make wills but will makers cannot disregard their obligations to their family even if they feel that they have every excuse to for whatever reason.
Although the will maker (a “testator”) has generally the freedom to dispose of his or her assets as he or she sees fit, there are two statutes which can operate for the benefit of a dissatisfied beneficiary and which restricts the testator’s freedom. These statutes are the Family Protection Act 1955 and the Law Reform Testamentary Promises Act 1949.
Under the former Act a Court may order that provision be made out of the estate for a limited class of relatives if the Court is satisfied that the testator has not made adequate provision for the proper maintenance and support of that applicant (beneficiary) and thereby has breached his or her moral duty to that applicant. The test is what provision “a wise and just testator” would have made for that beneficiary.
Courts do not set out to re-write the will and a will cannot be altered just because it is not completely fair. Accordingly the Court’s task is one of extreme difficulty and delicacy.
Those that can claim are:
- The deceased’s married and de facto partners;
- Children of the deceased;
- Grandchildren of the deceased;
- Step-children of the deceased subject to the testator having actually maintained the step-child whether wholly or partly; or alternatively that the step-child was legally entitled to be maintained wholly or partially by the testator immediately before death;
- Ex nuptial children of the deceased;
- Parents subject to certain conditions which involve receiving maintenance from the testator immediately before his or her death or if there are no children or spouse living at the time of the testator’s death.
It is important when making your will that the above matters are considered if there are issues with members of the family and where the will maker does not want to make provision for those that he or she would normally look to include as a beneficiary or beneficiaries. The above considerations are separate from testamentary promises where the provisions of the Law Reform Testamentary Promises Act 1949 need to be considered.
The contents of this article are for general information only and does not constitute legal advice and should not be substituted for professional legal advice obtained from your solicitor.