The loss of a family member is always a difficult time, but it can become more distressing to learn that you have not received adequate provision out of the family member’s Will or have been excluded from the Will altogether.
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:
- Challenging the validity of the Will on the basis that the Will maker did not have the legal capacity to make the Will, or did not understand what they were signing; or
- Making a claim under the Succession Act on the basis that the Will maker failed to provide or inadequately provided for a person where they had a moral obligation to do so.
Under the Succession Act, only persons who qualify as eligible persons under the Act may apply to the Court. There are six categories of eligible persons, namely:
- The spouse of the deceased;
- A person in a de facto relationship with the deceased;
- A child of the deceased;
- A former spouse of the deceased; or
- A dependant of the deceased, being either a grandchild or a member of the deceased’s household, such as a step-child or parent of the deceased; and
- A person in a close personal relationship with the deceased at the time of the deceased’s death.
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 limit, which is 12 months after the date of death.
You may not need to go to court as many claims are settled at or following 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 or someone you know wants more information or needs help or advice, please contact us on 0451 530 877 or email in*********@*******om.au.