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 family member’s 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 who can sometimes be unfairly left out of the deceased’s Will and are therefore able to make a claim so that their needs are adequately provided for.
In these circumstances a person can consider challenging the deceased’s 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, or didn’t understand what they were signing; or
- A claim can be made under the Family Provision Act on the basis that the Will maker failed to provide for a family member where they had a moral obligation to do so.
Under the Family Provision Act, only persons who qualify as eligible persons under the Act may apply to the Court. There are seven categories of eligible persons, namely:
- The wife or husband with the deceased when they died;
- A person in a de facto relationship with the deceased when they died;
- A child of the deceased;
- Former wives and husbands of the deceased or former de facto partners of the deceased, who were receiving or entitled to receive maintenance from the deceased when they died;
- A grandchild of the deceased, in certain circumstances;
- A step-child of the deceased in certain circumstances; and
- A parent of the deceased.
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 strict time limit, which is 6 months after the date of death. You may not need to go to court as 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 and get a copy of the last Will of the deceased so that you can discuss the details with us more accurately.
If you need more information or if you need assistance or advice on how to proceed please call us on (08) 9375 3411.