Back to all publications

Left Out of a Will?

A spouse, child, grandchild, stepchild or parent of the Will maker can bring a claim if they consider they did not receive enough under the Will. 

How much you receive depends on a number of factors, including the needs of the claimant.  For someone without significant needs, acknowledging the claimant as a family member (and short of disentitling conduct) Courts have previously awarded about 10%-15% of the estate.  However, the Court of Appeal has confirmed that an award is not limited to this range.  For claimants with greater maintenance and support needs, Courts have discretion to increase awards. 

Moral Duty

Without being overly moralistic, every person owes a moral duty to provide proper maintenance and support to their family.  The degree of support depends on the nature of the relationship.  A parent-child relationship has a higher moral duty than an adult’s moral duty to their wealthy parents.  The key question is “did the deceased breach the moral duty owed to the claimant from the standard of a wise and just Will maker?” To answer this Courts look at:

  • The relationship between the deceased and claimant;
  • Any particular closeness or estrangement;
  • The size of the estate (relative to other claims under it, such as other Will beneficiaries);
  • The claimant’s circumstances and need of maintenance and support (i.e. sustaining and providing comfort). Special needs such as a disability may warrant a higher award;
  • The Will maker’s wishes;
  • Any gifts the Will maker gave the claimant during their life;
  • Ethical, moral and social norms.

Award Size

Any award depends on the estate’s size and the facts of each case.  The Court of Appeal says Judges will be guided by the following principles:

  • An unequal distribution is not enough to be a successful claim (because a Will maker can deal with their property as they like);
  • An award should not be nominal nor overly generous;
  • An award should be no more than is necessary to remedy the breach by making adequate provision for the claimant’s maintenance and support.

Process

A Family Protection Act Claim commences by filing a Statement of Claim in the Family Court.  The time limit is 12 months from the date of the grant of probate, however, ideally a claim is filed less than 6 months from the grant of probate.  All interested parties will be notified of the claim, and have the opportunity to oppose the application and provide evidence to counter it.  A Court timetable is then put in place, which may include a Judicial Settlement Conference to explore a negotiated settlement.  If the matter does not settle it proceeds to a trial with the Court determining if the duty has been breached and, if so, what is required to remedy that breach.

If you have questions regarding a claim against an Estate or defending a claim, our Dispute Resolution Team are able to assist you.

Ewen is a Senior Solicitor in our Dispute Resolution Team and can be contacted on 07 958 7466.


Back to all publications