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Contesting a Will: Are you eligible?

08-11-2021    |    Resource   |   Graeme Hockley

Unfortunately, when someone passes away, a situation can arise in which one or more people feel that they have been unfairly treated in that person's Will.  This can occur when a Will has not been updated to accurately reflect a change in circumstances, or it could be due to a more complex family situation.

Whether it is a family member who has been left out of the Will, or a loved one who feels that they should have received more from the estate, the tension and conflict that this kind of situation creates can be very stressful for everyone concerned.


Contesting a Will

The term 'contesting a Will' refers to claims made against a Will by people who think they are entitled to a portion of someone's estate, or a greater portion if they have already been named as a beneficiary.

The law in Australia is very clear about who is eligible to make a claim against a Will and only certain people are allowed to contest a Will.  These people include:

  • the husband or wife of the deceased at the time of death;
  • the de-facto partner of the deceased;
  • a child of the deceased person;
  • a former husband or wife of the deceased;
  • a grandchild who was, at any time, wholly or partially dependent on the deceased and living in the same household; or
  • a person with whom the deceased was living in a close personal relationship at the time of their death.


How a claim is dealt with

If you, or someone you know, think that you may be eligible to make a claim against an Estate, the first step is always to seek expert legal advice (and quickly).  There are strict rules and time limits involved and, if a claim can be made, it is important that it is started as soon as possible before the Estate is finalised and distributed to the other beneficiaries.

At Lamrocks, our experienced Wills and Estates team – led by an Accredited Specialist in Wills and Estates Law - can easily determine whether or not you are eligible to make a claim, the likelihood of it being successful, and what the possible outcome may be. 

If a claim is made, the Court will then consider a number of factors when making their decision, including:

  • The financial position of the person making the claim, and the financial position of the other beneficiaries of the estate
  • Any provision that was already made to the person making the claim
  • The current and future financial needs of the person making the claim
  • The relationship between the deceased and the person making the claim
  • The overall value of the estate
  • Any physical, mental or intellectual disability of the person making the claim
  • The age of the person making the claim
  • Whether the person making the claim was being maintained wholly, or partly, by the deceased.

Interestingly, one of the most common misconceptions in this area is that if someone leaves a person something in their Will, then that person is not legally entitled to make a claim for anything further.  This is not correct - the law will also look at whether or not the person has been "adequately provided for" and if they are eligible, then a Court may rule that they receive a greater portion of the estate


What can you do?

The Family Provision Act that governs this area can be very complex and contesting a Will is not an easy process.  If you think that you might be eligible to make a claim against an estate we strongly recommend speaking to an expert in the field.  Incorrectly making a claim can be a very costly exercise.

For more information, contact Graeme Hockley, Brent Jones, or Marco Manna on ph: 02 4731 5688.


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