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Family Provision 101: What to do if you’ve been left out of a Will

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By Theresa Dowling

The impact of losing a loved family member cannot be overstated.

The immediate shock and grief can be compounded if you find you’ve received less than expected when it comes to their Will.

There are many reasons why someone can be left out of a Will. Sometimes the deceased has simply failed to plan properly – they may not have made a Will, their Will may have been outdated, or a Will may have been poorly prepared and have caused unintended consequences.

Sometimes, the act of leaving a loved one out of a Will can be deliberate and intended. This may occur if there has been a falling out within the family or when the deceased felt they didn’t have an obligation to provide for someone in their Will.

If you find that you’ve been unexpectedly left out of a Will, you may be able to make a claim for a share of the deceased’s estate. Below we set out some of the key things to consider if you find yourself in this situation.

I have been left out of a Will or inadequately provided for. What now?

If you have been left of out of a Will or inadequately provided for by someone close to you such as a parent, spouse, or another family member, it’s important to seek legal advice as soon as possible. Important time limits apply so it is crucial that you do not delay in obtaining the advice you need to understand your position.

You may be able to make a Family Provision Claim, which allows eligible people to seek a greater share of a deceased’s estate.

Who can make a Family Provision Claim?

Only certain people are able to make a Family Provision Claim and eligibility varies depending on where the deceased’s estate is located. In the ACT, eligible persons may include:

  • A partner;
  • Someone who was in a domestic relationship with the deceased person for 2 or more years continuously at any time;
  • A child (including an adult child);
  • A stepchild (including an adult stepchild, but only in limited circumstances);
  • A grandchild of the deceased person (including an adult grandchild, but only in limited circumstances);
  • A parent of the deceased person (in limited circumstances).

Once it has been determined that you are an ‘eligible person’, you may be able to obtain an award for a greater share of the estate if it is agreed or found that you have been inadequately provided for.

Will I have to go to Court?

Some Family Provision Claims are resolved before the matter has to formally commence in Court. The majority of those that are commenced will settle prior to a final hearing. If the matter is unable to be resolved by the parties prior to a contested hearing, then the matter will be decided by a judge of the Supreme Court.

What will the Court consider?

In the ACT, the Court will have regard to any or all of the following factors:

  • Your character and conduct;
  • Your relationship with the deceased;
  • Any contributions made by you or the deceased to the other;
  • Your income, property and financial resources (and those of the deceased and any other competing claimant);
  • Your physical and mental capacity;
  • Your financial needs and obligations (and those of the deceased and any other competing claimant);
  • The responsibilities of you or the deceased (during his or her life) to support any other person;
  • Any order/s made under the Domestic Relationships Act 1994 with respect to the property of the applicant or the deceased;
  • Any payments made to you or the deceased by the other, under an order of the court or otherwise, in respect of the maintenance of the other person or any child of the other person; and
  • any other matter the court considers relevant.

Estate litigation is a complex area of law and it’s important you seek advice from a lawyer with specific experience in this area. If you believe you’ve been left out of a Will and would like some advice about contesting the estate, contact the Wills and Estates team at DDCS Lawyers on (02) 6212 7600