You may have a claim – Wills

Being left out of a will can be difficult, confusing and painful.  

The will may be legally valid and you may be left feeling like there is nothing you can do.  However, the law says that there are various circumstances in which you may have a claim on the estate.  These include:

• If the will doesn’t reflect the deceased’s true intentions; or
• If you were dependent on or related to the deceased. 

Contesting a will while you are grieving a loss is challenging.  Your first step should be to get advice about your options, so that you can make an informed decision before speaking out. 

We will speak to you and gather all the necessary information and documents we need to advice you on:

• whether the will is valid;  
• what claims may be available to you;
• your prospects – including our strategy recommendation you may adopt to seek to pursue any available claims.

What to do before you contest a will

It is important you first obtain appropriate legal advice.  If you do not have a claim, there’s no point unnecessarily inflaming a situation within the family unit.   

If you have claim (and you wish to pursue it) we should move fast. We say this for two reasons:

• First, there are strict time limits on making claims against estates; and
• Second, it will be harder to recover your share of an estate that has already been distributed among the beneficiaries.

Reasons to contest a will

The law provides various reasons for which a person is entitled to dispute a will.  These include: 

• Disagreements about what to do with property in the estate;
• Unfairness, including:
  • Someone feeling they should have been included in the will; and
  • Someone feeling that they were left too little from the estate;
• The validity of the will;
• Issues with the executor (if they delay or don’t follow the will). 

Interestingly, a will is not always the final word on who gets how much.  This can be true even when everyone agrees the will accurately reflects the deceased’s wishes.

Family provision claims

If you were left out of a will, whether you were dependent or not on the deceased, you may be able to make a family provision claim.  That’s because the law says an estate must provide for relatives or people in a relationship with the deceased in some circumstances.

Legally, there are some people who can’t be left out of a will, even if that’s exactly what the deceased wanted.

Examples of situations that might lead to a successful family provision claim include situations where:

• Parents don’t trust their child spend an inheritance wisely
• A nephew is left out of his uncle’s will, although he was living with him and she was supporting him financially
• A mother leaves everything to her new husband
• A person makes a new will leaving everything to his friend after briefly regaining mental capacity despite being in the advanced stages of dementia

Even if someone is left accounted for under a Will, they still may be able to make a claim if they were not properly accounted for under the will. 

Do you need help with an estate dispute?

If you are considering contesting a will, the reasons you might do so vary depending on your situation. Our lawyers are experienced with will disputes, so they can help you to navigate this difficult process with sensitivity and expertise. To find out if we could help with your particular case, please call us on 1300 660 884