Yes it is. If you believe that you have been inadequately provided for or completely left out of a family member’s will then you may be able to dispute it under the Family Protection Act. The Act provides that a person is responsible for the proper maintenance of certain close family members. If they fail in this duty then the Court can order provision be made for them out of the estate.
Do you have a valid claim?
First of all, any claim made against an estate must be made within 12 months of the deceased’s will being recognised. Claims after this period are not permitted. When considering your claim, the court will have to respect these factors (as well as others): What the will provides you
- The deceased’s wishes
- Your present financial position and likely future position
- Size of the estate
- Relationship between the you and the deceased
- Moral duty of the deceased to provide for you
If it can be shown to the satisfaction of the court – with respect to the above factors – that the deceased had a moral duty to provide for you, and that the duty was breached then the court will make a provision out of the deceased’s estate in order to remedy the breach.
A possible successful claim
The deceased has four children and only provides for three out of the four, the fourth being left out of the will. In these circumstances it is likely that a moral duty to provide for all children would be found. The neglect of one child would be a breach of this moral duty and therefore the court would order provision be made for this child out of the estate.
Do you have to go to court?
No, going to court is rarely necessary in disputes such as these. Most claims are resolved by the parties ‘settling’ outside of court. If it can be shown that a claim would likely be successful in court then both parties would usually come to an agreement – saving both sides the cost associated with taking the dispute to court. If you have any further questions, contact Jeremy Sutton Barrister and book a consultation."The information posted on this website is prepared for a general audience, without investigation into the facts of any particular case. This information is no substitute for legal advice and does not create a lawyer-client relationship; you are advised to consult with a lawyer on any legal issue."
