In a recent case, the deceased left behind a will which left 64% of the estate’s value to one of her eight children. That child had lived with the deceased for 10 years and had paid for all her outgoing costs and expenses. The child had also provided ongoing care for the deceased and her disabled brother. The other siblings received varying lesser amounts, and consequently brought a claim under the Family Protection Act against the deceased’s estate.

The Family Court held that the deceased breached her moral duty to provide for her children’s proper maintenance and support, and ordered the estate to be divided up equally between all siblings.

On appeal, the High Court agreed the deceased had breached her moral duty by providing small and varying amounts to the remaining 7 children.  However, the High Court did not agree that the estate should be shared equally amongst the children. The High Court found that the deceased had good reasons for leaving the majority of her estate to one child, and after balancing various factors ordered the estate to be split 40/60, 60% to be divided between the 7 children who were making the claim.

The Court of Appeal refused leave to appeal the High Court’s decision noting that the High Court had properly considered all of the relevant factors, and had justifiably concluded that one child was entitled to a greater share of the estate than the other siblings.

The deceased’s Will was carefully thought out and included an explanation as to why she was leaving the majority of her estate to one child.  The Court was then able to take this into account in its assessment of the claim.  It is important to obtain expert advice around wills and estate planning. 

It is also important to remember that the terms of a will can be challenged and it is advisable to obtain legal advice early.  A ruling in favour of a breach of moral duty will not always better your position. Relationships within the family can be seriously impacted and the legal battle can be stressful. An experienced lawyer will help you decide if on balance the potential upsides outweigh the downsides in your particular circumstances.

 


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