Help! I’ve been left out of the Will
If this has happened to you then you should contact a lawyer for expert advice immediately.
In some circumstances, there is legislation that can allow you to make a challenge to a Will if you have not been properly or adequately provided for in the Will. However, it is important to know there are time-limits involved in making such a claim.
The legislation is called the Family Provision Act 1972 (WA) (“the Act”) and allows for certain ‘classes’ of beneficiaries to make a claim for (further) provision from the estate. Eligible claimants include spouses, de factos, children, grandkids, parents and in some cases step-children.
Whether a claim will be successful or not is a complex answer and can depend on: the size of the estate, the financial need and circumstances of the claiming party, the needs of other competing beneficiaries and the relationship the claiming party had with the deceased.
Claims under the Act have a 6-month time-limit from the date of the grant of probate or letters of administration, although in some circumstances the Court may grant an extension of the time in which to make a claim.
If you have been left out of a Will or didn’t receive as much as you believe is adequate, then you should move swiftly to obtain proper advice about the prospects of making a claim. It is a much more expensive and complex process to attempt a claim after either the time limit has expired, or the assets of the estate have been distributed!
There are also other ways to ‘challenge’ the validity of a will and the approach to take depends on the circumstances of the matter.
Questions to consider include: was the will properly and validly made (signed, witnessed etc) and did the will-maker have the necessary testamentary capacity to execute the Will? Another very common complaint is where there are allegations of undue influence or coercion on the will-maker.
The team at Lynn & Brown Lawyers are experienced in dealing with these claims both for claimants and for executors and beneficiaries defending a challenge to the estate.
This experience also provides us with firsthand insight into future risks and helps us to better advise our clients about their estate planning and hopefully avoid the unhappy legacy of litigation over their inheritance.
If you consider you have not been properly provided for in a will, or if you are considering your own estate plan and are concerned about such a person making a claim on your estate in future then feel free to contact one of our expert team, and explore our resources on disputed estates and will preparation.
Looking for more insights from the team of expert Perth-local estate planning team at Lynn & Brown Lawyers? Read about why you should review your will, top five tips for executors of a will, and the not-so-super complications surrounding superannuation and estate planning.
About the authors:
After completing a double degree Bachelor of Arts (Politics and International Relations) and a Bachelor of Law, Matthew was admitted into the Supreme Court of Western Australia in 2016. Steven is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in commercial law, dispute resolution and estate planning.