Dad cut me out of his will – what can I do about it?

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If one of your parents has died and left you little or no property in his or her will, you may wish to bring a claim under the Family Protection Act 1955 (FPA).

Under the FPA, a person has a moral duty to provide for the “proper maintenance and support” of certain close family members, including adult children, in his or her will. If adult children have not been adequately provided for in their parent’s will, they may bring a claim in court seeking further provision from the estate. The court has a discretionary power to intervene in the terms of a deceased’s will if it finds the deceased has breached his or her moral duty.

Proper maintenance and support” is interpreted broadly by the court and includes emotional support, such as being recognised as a member of the deceased’s family. However, courts take a conservative approach when assessing whether the provision made by the deceased is adequate and, if not, what minimum amount is required to remedy the failure. The court will only intervene to the extent of that failure.

When a child brings an FPA claim against his or her parent’s estate, the court will consider a wide range of factors in determining whether the will-maker has breached his or her moral duty to that child. Those factors include:

  • whether the child has been left anything under the will;
  • what the deceased’s opinions and wishes were in relation to his or her estate;
  • the child’s age, state of health, ability to earn a living and present financial position;
  • the size of the estate;
  • the character and conduct of the child, including the relationship between the child and the will-maker; and
  • what moral duty the will-maker had to provide for others, for example, their spouse or other children.

Adult children without any particular financial need are generally awarded between 10 and 15 per cent of the estate as recognition of their place in the family. However, recent cases indicate that where an estate is worth over $5million, the court is likely to award less than 10 per cent to an adult child. For example, in Talbot v Talbot the estate was valued at over $10million. In that case, the Court of Appeal upheld the High Court’s award of just over $1million, commenting that the adult child did not require more than $1million to adequately provide for her proper maintenance and support. For more information about FPA claims against large estates, read this article.

In cases where the deceased parent was estranged from his or her child, the court is likely to find that the deceased’s moral duty is reduced. Usually this will not disqualify the claimant altogether unless:

  • there are strong competing claims and there are insufficient funds in the estate to meet all of those claims; or
  • the applicant’s conduct is disentitling.

The courts have held that there are two categories of misconduct by an applicant that qualify as disentitling, specifically:

  • outrageous conduct by the claimant towards the deceased; and
  • distinct and meaningful periods of estrangement brought about by the claimant.

Disentitling conduct is typically found in cases when the claimant is involved in criminal activity or has exhibited violent or abusive behaviour towards the deceased or other family members. In addition, for conduct to be disentitling it must affect the relationship between the claimant and the deceased. Even in cases where disentitling conduct is established, the court rarely excludes the claimant entirely.

For more information about bringing a claim against your parent’s estate, contact Morris.