July 2020 Newsletter

Welcome to our July 2020 Newsletter

We hope you and your families are keeping well following the relaxation of the lockdown restrictions. We were pleased to return to the office in May.

In tumultuous and uncertain times stress, pressure and animosity in domestic relationships can arise more frequently than it might otherwise. In more serious cases of family breakdown concerns over the future can lead to feelings of unhappiness and disdain towards one another. Contempt can even be carried through after death.

When a family member such as a parent or partner passes away leaving a Will often children will expect to receive a gift or inheritance as a beneficiary. What happens if relationships have soured to the point where animosity within the family unit leads parents to wholly exclude or omit their children from any bequest at all? What legal remedies do you have if you find yourself in this situation?

The Family Protection Act 1955 enables a person left out of a Will to make a claim for the Court to make provision from a deceased’s estate. Such claims are primarily based upon the idea that a wise and just testator (a will maker) will owe another person a moral duty to ensure their proper maintenance and support following the Will maker’s death. If they don’t then the Court can intervene to ensure protection. Before a person can make a claim they must first having standing.

The following people 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.

When determining whether or not breach of moral duty has been established a Court will consider numerous relevant factors. Important of which are the size of an estate, the age and financial position of a claimant, any estrangement within the relationship and whether there any other competing moral claims.

If you have any issues or queries about a deceased’s Will or your parent or partner has passed away recently leaving you out of their Will please feel free to call our office to discuss your matter further.

Kind regards

The Directors
Davenports West Lawyers Limited
Phone: (09) 836 4099