• Ross Moschella

Have you been left out of a Will?

Updated: Jun 9, 2021

The loss of a family member is always a difficult time, but it can become 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 financial support or family members who may sometimes be unfairly left out of the Will and may therefore be 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:

  • The validity of the Will may be challenged 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

  • on the basis that the Will maker failed to provide for a family member or financial dependent where they had a moral obligation to do so.

Under the Succession Act, only 'eligible persons' under the Act may apply to the Court. There are five categories of eligible persons, namely:

  1. The wife or husband of the deceased when they died;

  2. A person in a de facto relationship with, or a civil partner of, the deceased when they died;

  3. A child of the deceased, including a stepchild or adopted child;

  4. A dependent former spouse or civil partner (in certain circumstances); and

  5. A person who was being wholly or partly maintained or supported by the deceased at the time of death, the person being:

  6. a parent of that deceased person; or

  7. the parent of a surviving child under the age of 18 years of that deceased person; or

  8. a person under the age of 18 years.

To show that you are 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, education or advancement in life.

It is important to note that inheritance claims are subject to time limits. An executor or personal representative of a deceased estate may distribute the estate after 6 months from the date of death if they do not have notice of an application or intended application for a family provision claim.

Whilst the court has a discretion to extend, notice of intention to file an application should be given before the estate is distributed and an action commenced within 6 months of the date of death.

You may not need to go to court as in our experience most parties encourage mediation to avoid unnecessary legal costs or 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. It is usually a good idea to try to get a copy of the last will so you can discuss the details with us more accurately.

Challenging a Will can be complicated, expensive and time consuming. Legal advice should always be sought, particularly as there are time limits and good advice received early can save considerable angst and cost later on.

A lawyer can advise you about potential challenges to a Will and the best ways to avoid them when making your Will. If you would like to have a confidential discussion, call us on 07 3221 8655 or email mail@ellisonmoschella.com.au.

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