User:Greg Anastasi

The Act originally began its life in New Zealand as the "Family Protection Act 1908". The primary propose was the protection of widows and children from wills that would leave them destitute.

An example often cited is of a father that leaves his entire estate to the gentleman's club when he had a wife and young children that needed support. One solution to this problem was to limit the freedom of how a will could distributed in an estate to 1/3 to the widow 1/3 to the children and 1/3 free for the deceased as they wish. This solution was seen to be overly interfering with the freedom of a person to distribute their wealth as they saw fit. As a compromise solution the Family Protection Act 1908 came into effect in New Zealand and later spread to Australia and the UK. I believe that when the Act was written the parliament expected the court to take a more general definition of children to only include those that you would expect the deceased to have responsibilities for. Over time, the definition of an eligible person expanded to accommodate changes in the make-up of the modern family (de-facto and the like). Most would agree that this was a positive reflection of society's expectations. The current situation is that the FPA is used to even out "The unfairness of life".

Here is a fictional example of what we see in the courts today.

The deceased has two children, child 1 works and saves and places themselves well for their future. Child 2 has a problem holding onto money and tends to waste what they do get. Child 2 has also fallen out with their parent as they resent their advice and have not been in contact for 20 years. Both children are both in their 40's. In the will, the parent leaves $300,000 to child 1 and $20,000 to child 2, saying in the will that "I give child 2 only $20,000 as they have abandoned me and have shown that to give them more would be a waste as they are not good with money" Here are the probable outcomes if child 2 decides to contest the will.

Mediation:

Child 1 will be advised by their lawyers that child 2 has a good chance of winning in court and it would be best to pay them off. Child 1 pays child 2 $100,000 plus $15,000 for child 2's lawyers, plus $15,000 for the estate lawyers, leaving child 1 with $170,000.

Court:

It is two years since the parent’s death. Child 2 receives $100,000 because child 1 is in less need. Child 1 has to pay the legal cost of child 2 which are now $40,000 child 1's costs are $45,000 child 1 receives $115,000,

Only a fraction of claims go to the Supreme Court as the majority of estates will be extorted for large sums, (eg 20-30% of small estates less than $500K, and 10-15% of larger estates), in an attempt to mitigate large legal costs.

As the NSW supreme Court tends to publish costs in their judgments I will use them as an example.

 Case Estate value and legal cost.

Thirkell v Cox [2010] NSWSC 99 estate value=$298,000.00 cost $71,000

WHITINGTON v WHITINGTON & ANOR [2009] SASC 142 estate value=$202,000 Cost $225,000

Moon v Abrahams [2010] NSWSC 69 estate value=$125,000 Cost $147,000

Axiak v Axiak [2009] NSWSC 1319 estate value=$2,500,000.00 Cost $109,000

Frizelle v Old [2009] NSWSC 1259 estate value=$844,000.00 Cost $80,000