If you are considering excluding a child from your will, you need to be aware of potential claims that child may have against your estate. This article provides a brief summary of the rights children have under the Family Protection Act to challenge their parent’s wills.

 

Contract3

It is not uncommon for a parent and child to become estranged or to have a strained relationship as a result of events which occur during their joint lifetimes.

In such circumstances a parent may feel a sense of betrayal by the child and react by threatening to cut the child out of their will, actually taking the step of making no provision for the child in their will, or by making provision which is considerably smaller than for other children in the family.  However, this can lead to the parent’s will being challenged after they have died.

Under the Family Protection Act 1955, the Court has a discretion to make orders for the provision of the proper maintenance and support of a child who claims he or she has not been adequately provided for in the will of his or her parent.

Whether there has been proper maintenance and support turns on a moral obligation of the parent to provide for the emotional and material needs of his or her children.  This obligation extends beyond the life of the parent to provision for the child out of the deceased parent’s estate.

Part of the definition of “support” is recognition of a child as belonging to a family and of having been an important part of the overall life of the parent who has died, even if the child is an adult when the parent dies, and has no economic need at that time.

When hearing a Family Protection Act claim by a child or children, the Court will look at the facts of the particular case. There is no “one size fits all” formula for assessing whether there has been a breach of moral duty by the will-maker.

If the Court decides that there has been a breach of moral duty by the will-maker towards their child, the amount of any award in favour of the child also depends upon the particular circumstances of the case; there are no fixed proportions applicable, as between beneficiaries.

Circumstances which might justify the total exclusion of a child from a parent’s will are extreme, for example: outrageous, serious conduct involving a high degree of malice by the child towards the deceased parent, or distinct and meaningful periods of estrangement brought about by the child.

If you are considering leaving a child out of your will, do not be surprised if your lawyer asks searching questions about the reasons for this or if they advise you against taking this position. 

If you leave any of your children out of your will, or provide inadequately for some, contrary to what a “just and wise” will-maker would do, you are inviting the disenfranchised child or children to embark on action through the Court, which can be not only lengthy, costly and uncertain in outcome, but also has the potential to irreparably damage family relationships.


Further information