Business during COVID 19 - see here for more details

Have you been left out of a Will?

The loss of a family member is always a difficult time, but it can become even more distressing to learn that you have not been included in the Will.

Generally, a person may leave their assets to whomever they wish. However, the law recognises that there are those who relied on the deceased for support that can sometimes be unfairly left out of the Will, and are therefore able to make a claim so their needs are adequately provided for.

In these circumstances a person can consider challenging the Will or contesting the Estate. There are two main ways that this can happen:

1.) the validity of the Will may be challenged, eg. on the basis that the Will maker did not have the legal capacity to make the Will, didn’t understand what they were signing, or was under duress or undue influence when making the will; or
2.) a claim can be made under the Succession Act on the basis that the Will maker failed to provide the proper maintenance and support for a family member – called a Family Provision Claim.

Under the Succession Act, only persons who qualify as eligible persons under the Act may apply to the Court.

There are specific categories of eligible persons:

  • The wife or husband of the deceased when they died;
  • A person in a de facto relationship with the deceased when they died;
  • A child of the deceased, including a stepchild or adopted child;
  • Former wives and husbands of the deceased;
  • A person who was wholly or substantially maintained or supported by the deceased.

To be entitled to receive some benefit from the estate you must show that the deceased had an obligation to provide for you and that you have been left without adequate provision for your proper maintenance and support.

Challenges to the validity of a Will and Family Provision Claims may be subject to strict time limits. An executor or personal representative of a deceased estate may distribute the estate after six months from the date of death if they do not have notice of an application or intended application for a family provision claim. Notice of intention to file an application should be given before the estate is distributed and an action commenced within nine months of the date of death.

Most claims never actually proceed to go to a court hearing as the parties prefer mediation to avoid unnecessary legal costs and any lengthy delays.

If you are concerned, please be sure to contact us as soon as possible or you may be prevented from making a claim. You should if possible, obtain a copy of the last Will so you can provide us with clear instructions.

 

If you need help or advice please contact us: 

 Ken Waddington

Partner

(07) 5443 4866

kwaddington@gwlaw.com.au

If you need help, or have a question get in touch with us today.