The Last Will and Testament - Is it final?01-08-2016 | Resource
Unfortunately, when someone passes away, a situation can arise in which one or more people feel that they have not been fairly treated in that person's Will. Whether they are 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.
In today's society, disputes over Wills are becoming increasingly common. One of the main reasons for this is the growing 'complexity' of families as more and more people re-marry, have children to more than one partner, or raise step-children and grandchildren as their own.
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.
It is important to note that the law in Australia is very clear about who is eligible to make a claim against a Will. Only certain people are allowed to contest a Will if they feel they have not been treated fairly or received adequate provision. 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 with at the time of their death.
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.
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). 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 for example.
At Lamrocks, we have an Accredited Specialist in Wills and Estates Law who can easily determine whether or not you can make a claim, whether it might be successful and what the possible outcome may be. Remember, if a claim is unsuccessful it can be a very costly exercise.
If a claim is made, the Court will then consider the following factors (among others) when making their decision:
- 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.
The Family Provision Act that governs this area can be very complex and contesting a Will is not an easy process. If you have think that you might be eligible to make a claim against an estate we would strongly recommend speaking to an expert in the field. For more information, contact Lamrocks' experienced Wills and Estates solicitors on ph: 02 4731 5688.