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Disputing the deceased's Will and making a claim against their Estate

Have you been left out of a Will?

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:

Challenge the validity of the Will

The validity of the Will may be challenged on the basis that the:

  • making of the Will involved fraud or forgery; or
  • Will maker did not have the mental capacity to make the Will; or
  • Will maker was unduly influenced or pressured when making decisions about what to include in their Will

Claim under the Inheritance (Family Provision) Act

A claim can be made under the Inheritance (Family Provision) Act on the basis that the Will maker failed to provide for a family member where they had a moral obligation to provide for education, maintenance or support (or if inadequate provision has been made).

Under the Inheritance (Family Provision) Act, only persons who qualify as eligible persons under the Act may apply to the Court.

The persons who are entitled to make a claim against the assets of the deceased estate are:

  • The spouse of the deceased person;
  • A person who has been divorced from the deceased;
  • The domestic partner of the deceased;
  • A child of the deceased;
  • A child of a spouse or domestic partner of the deceased who was maintained by the deceased;
  • A grandchild of the deceased;
  • A parent or sibling of the deceased who cared for or contributed to the maintenance 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 limits. If you are considering making a claim, you must notify the Executor or Administrator as soon as possible to prevent the distribution of assets and no later than 6 months from the Grant of Probate or Letters of Administration.

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 8210 5400 or email lawyers@georgiadis.com.au.

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