Contesting a Will – What to do if you have been left out?

With the ever changing social dynamics around us, it is becoming more apparent in the average Australian family space that people are contesting Wills.

So what does this mean for you?

As you are aware, people are able to decide who will inherit their estate by writing a Will. Unfortunately, people make decisions in respect to their Will that fail to take into consideration their spouse, de facto partner, child or someone who is dependent on them. Nevertheless, the law provides protection to people who have been left out or receive an unfair or disproportionate provision from a deceased estate.

If this sounds like you, you are able to contest a Will and bring a family provision claim against the deceased’s estate in order to receive an adequate provision from the estate.

To bring a family provision claim, you must be an eligible person e.g spouse, de-facto, child or a dependent of the deceased. A grandchild is not an eligible person unless they were a dependent of the deceased.

You also have only 12 months to make a claim from the date of the deceased person’s death, so it is critical to obtain legal advice as soon as possible.

Contesting a will: what the court considers

Should you be an eligible person, the Court will then consider the following matters;

1. Your relationship with the deceased;
2. Your financial resources and needs together with the financial resources and
needs of other beneficiaries;
3. The size of the estate;
4. Any contributions made by you to the deceased during their lifetime;
5. Any gifts received by you from the deceased during their lifetime;
6. The financial circumstances of your partner (if you have one);
7. Your dependency on the deceased
8. Your age and health;
9. Your character and conduct towards the deceased;
10, Any other matter the Court considers relevant.

If you believe that you are an eligible person and have been left out of a Will or have not received an adequate provision, you may be able to contest the will and obtain more than you think.

Equally, if you are an Executor and you are required to defend a family provision claim, we can assess your claim and provide you with expert advice with an aim to settle your matter swiftly in order to minimise the costs incurred by the estate.

Our team has extensive experience in estate litigation and whether you believe you are eligible to make a claim or require advice in defending an estate, we can assist you.

If such is the case or if you require further information in relation to the above, please contact Ian Agamalis or James Hatzopoulos at Rostron Carlyle Lawyers on (02) 9307 8900 or by email to [email protected] or [email protected].

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