The High Court has accepted a daughter’s claim under the Family Protection Act for inadequate provision in her mother’s Will. The Court awarded half of the mother’s estate to the claimant and the other half to her sister.

The mother’s original Will was made five years before her passing. The Will provided that the mother’s estate was to be left wholly to two of her great-nephews, aged 11 and 9. The nephews lived in the United Kingdom and had never met the mother.  

There was no provision in the Will for the claimant, and only a small provision for the other daughter. The claimant brought a claim to the Court under the Family Protection Act for inadequate provision.

Under the Act, a child may make a claim to the Court if the Will-maker has not provided for them sufficiently, or at all.

The Will-maker has a moral duty to properly provide maintenance and support to family members.  Whether there is a moral duty depends on a number of factors including the economic needs of the claimant, the size of the estate, other moral claims to the estate and the relationship between the claimant and the Will-maker.

In this case, the claimant and Will-maker were mother and daughter, and it is widely accepted that parents have an ongoing duty to provide for their children both emotionally and materially.

The Court also considered that the claimant had faced significant hardship due to the mother’s disabilities and mental health issues. The claimant had been required to look after her sister when they were growing up, a large burden for a young child to bear.

At the time of the claim, the claimant had little financial support and her current house required various repairs to meet the standard of healthy living. The claimant argued that her mother had been influenced by her niece, which led to the great-nephews being provided for rather than the two daughters.

The Court accepted that the claimant and her sister had been inadequately provided for. The mother had breached the moral duty she owed to her daughters as a result. The Court accepted that the great-nephews had no relationship with the Will-maker and were therefore not entitled to a share of the mother’s estate.

The Court ordered that the estate be split evenly between each of the daughters.

It is important to get your Will right, so that it is not subject to challenges later. If you are confused about your obligations as a Will-maker, it pays to seek advice from a professional with experience in the area.


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