In a Family Court decision two of three surviving children made a claim under the Family Protection Act against their mother’s will. They claimed that their mother had breached her moral duty to them by leaving the bulk of her estate – the family farm - to their brother, her only son.

The Family Protection Act allows a court to make provision from an estate in favour of certain family members when a deceased’s will fails to make adequate provision for their proper maintenance and support.

In the case, the Family Court upheld the sisters’ claim, and divided the farm in equal shares between the three siblings.

On appeal the High Court reversed the Family Court decision, finding that the Judge had erred in her application of the law in relation to amount of relief.

The High Court held that the Judge had essentially rewritten the will based on the concept of fairness. In doing so, the Family Court had in effect disregarded the deceased’s wishes, in favour of a presumption of equal sharing.

The High Court noted that the focus must not be on what the Judge thinks is ‘fair’, but rather on what provision is necessary to provide for an applicant’s proper maintenance and support, taking into account their financial position and their entitlement to be recognised as a member of the family.

The High Court awarded the sisters a 30% and 25% share of the estate to reflect the care and support they gave to their mother until her death, the hardships suffered by them throughout their childhood, and their financial need.

It is important to remember that there is no presumption of equal sharing amongst children as people are at liberty to do what they like with their estate, and can treat their children differently so long as any provisions made discharge their moral duty.

Children treated unequally under a Will, even by being left out altogether, cannot simply assume that they have been treated unfairly and will be able to make a successful claim. It comes down to the particular circumstances of each Estate, and each claimant, as this case clearly demonstrates. 

If you have been left out of a Will or are considering of challenging a Will, see your lawyer or legal advisor for advice.