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Wills and Estates: I’ve Been Left Out of the Will – What Can I Do?

The death of a loved one can be one of the most stressful times in a person’s life. It’s right up there with the top five most stressful things that can happen, including divorce and separation. It can be even more stressful when you find out that you’ve either been left out of the Will or have been gifted an amount far less than what you had thought you would receive.

So what are your options when contesting a Will?

Certain people have a right to bring a claim on an estate. Those people are:

  1. The deceased’s spouse – married or defacto;
  2. The deceased’s children – including step-children and adopted children;
  3. A person under 18 who was being maintained by the deceased at death.

The ‘claim’ is called an Application for Further Provision. It is called that because you are saying to the Court – what I have received is not enough for what I need, and as such, I need a more excellent distribution than what is in the Will.

What does the Court consider in an estate litigation case?

At the outset, it is imperative to understand that an estate claim has nothing to do with what is fair. It may be unfair that you have been left out of the Will or received a smaller distribution than your siblings. However, when deciding matters, the Court does not consider fairness.

Applications for further provision relate to an eligible applicant who has not been provided with “adequate” and “proper” maintenance and support from the deceased’s estate. The Court is required to make such provision as it considers should be made having regard to the circumstances before it at the time of the application.

There is a two-stage process in considering an Application. First, it must be determined whether the Applicant has been left without adequate provision for their proper maintenance and support and if the answer is “yes”, then second, decide what the provision should be.

Two matters are considered in the first stage – the need of the Applicant and the Applicant’s moral claim on the estate. Both factors are relevant; however, a claim will likely fail if there is an absence of need.

An Applicant doesn’t need to be on hard times for the “need” requirement to be triggered. 

The Applicant must establish that there is a need for maintenance and support. It can be a future need. It can also be relative and depend on the estate’s size and other claims’ existence.

The moral claim relates to the concept that the deceased is under a moral duty to provide for their family, and as such, the family then has a moral claim on the deceased’s estate if the deceased breaches that moral duty. Some examples of where this is relevant relate to contributions made by beneficiaries to the building up of the deceased’s estate or where the relationship between the deceased and the Applicant becomes relevant. A very good or very bad relationship can affect the outcome of an application, along with where the fault lies in the case of a bad relationship.

Anything else to be aware of when contesting a Will?

Several matters could impact your claim:

  1. The type of Applicant is also relevant. If you are the deceased’s child and the deceased’s spouse is still alive, your application might fail against the surviving spouse.  
  1. If you are estranged from the deceased – that will be relevant. Who is responsible for the estrangement is also essential, particularly if it is not your fault.
  1. Competing applications will also impact your application if other beneficiaries have a need and take issue with the provision they have received.

There are lots of different factors that could impact your claim. As your personal circumstances are unique to you, you must get legal advice about your circumstances before you lodge your claim. 

There are costs and consequences if you lodge a claim that should fail. You may be ordered to pay the costs of the other parties, including the Executor, if you bring a claim that is not successful.

If you feel you have been unfaily excluded from a will or wish to contest one, get in countact with our office by booking a free call below with a family lawyer today. 


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