If one of your parents has died leaving a Will that provides you with nothing, or little, you may consider bringing a claim for a portion / greater portion of the estate, assuming that there are enough assets in the estate to make a claim worthwhile.

If it turns out that your parent has transferred their assets out of their name during their lifetime or own everything jointly with their spouse, you may still be able to bring a claim in certain circumstances – see What Happens If All Of The Assets In My Parent’s Estate Goes To My Step-Parent? Can I Make A Claim?.

The Family Protection Act 1955

The Family Protection Act 1955 confirms that a moral duty is owed by a will-maker to certain classes of family members, including children and adult children (and in some circumstances spouses, de facto partners, grandchildren, and stepchildren).

What will be required to meet the obligations of the “moral duty” will vary depending on the particular circumstances, however the Court will often consider the following:

• emotional support and recognition as belonging to the family;
• size of the estate;
• financial need;
• medical status;
• nature of the relationship with your parent;
• contribution to your parent’s welfare;
• contribution to your parent’s estate;
• benefits or gifts received from your parent during their lifetime;
• competing claims between family members;
• change in circumstances after death.

Left out of your parent’s will entirely?

Generally speaking, if a child has been excluded entirely, the Court is extremely likely to intervene and make provision from the estate. However determining how much a Court is likely to award is largely dependent on the particular circumstances of the child and the family unit.

Unequal Inheritance

It should not be assumed that a Court will divide an estate equally amongst adult children as parents are not required to treat family members or their children equally. This means that unequal division of an estate among siblings does not provide a strong basis for bringing a claim alone and needs to be considered in light of the factors above.

Additionally, the Courts will only intervene to the minimum extent necessary to remedy the breach of moral duty and “right the wrong”. This is why proper advice and strong advocacy by an experienced lawyer can assist those considering bringing this type of claim against an estate.

Smith & Partners have considerable experience dealing with estate disputes and Family Protection Act claims, particularly involving adult children.