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What should happen when a person leaves little property for other family members?

People who make wills usually leave their property to family and friends.

The Family Protection Act 1955 allows family members to claim a greater share of the deceased’s property if the will does not recognise them properly.

Sometimes there can be tensions between family members who feel left out under the will and the surviving partner. These tensions commonly arise where the family members are children from the deceased’s previous relationship. They might feel that it is unfair if the deceased leaves lots of property to a partner from a later relationship.

Particular problems arise if the deceased legally co-owned property with his or her partner. In those situations, the property goes to the surviving partner. Other family members cannot claim against that property under the Family Protection Act 1955.

The Property (Relationships) Act 1976 allows the people who administer the deceased’s estate to ask the court to divide the couple’s property so family members or children get a fairer share. The court will only grant permission to do that if otherwise there would be a serious injustice.

The only times when the court has granted permission have been where the deceased left very little property to his or her children and the deceased’s partner took all the valuable assets.

Shaun and Nancy
Shaun has two children from a former relationship, Emily (aged 13) and Titus (aged 9). For the past six years, Shaun has been in a relationship with Nancy.

Shaun and Nancy have acquired several rental properties together which they hold as co-owners. The net value of their property is around $900,000.

Tragically Shaun dies.

All the co-owner rental properties pass to Nancy. Shaun’s estate comprises a few personal items and some savings which together total around $15,000.

Emily and Titus will get little of Shaun’s property under his will.

The lawyer administering Shaun’s estate wishes Emily and Titus could receive more property. The lawyer applies to the court to divide Shaun and Nancy’s rental properties equally under the Property (Relationships) Act 1976.

In these situations, the court is trying to ensure other family members do not miss out. But it might seem strange to use the Property (Relationships) Act 1976 to achieve that. If a person did not provide enough property in a will for other family members, why should a court divide the couple’s property equally as if both partners were still alive and had separated?

A court has to weigh up and balance the needs and interests of all family members and the surviving partner. The law ought to state the fair way of distributing property between everyone. But the Property (Relationships) Act 1976 does not. Its main purpose is sharing property between two living people who have separated.

It might be better if there was a separate law which explained how the court should divide a deceased person’s property among the entire family.

What do you think?

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