What can I do if I have been left out of a will?
There are many terms that are used for these types of claims such as, Contesting a Will, Contesting an Estate, Family Provisions Application, Family Provisions Claim, Estate Litigation or Claiming on an estate which all relate to the same thing.
If you’ve been left out of a Will, or have been unfairly treated in terms of the amount of your inheritance you may be able to make a claim against the estate. People often make wills but don’t always update them regularly to reflect their current intentions or changed circumstances such as a relationship breakdown.
In some situations, it may be possible to contest the will and receive a payment out of the estate. Some examples are in the case of a child from a previous relationship that has been left out of the will or a life partner who was in a close personal relationship with the will maker and has relied on them for their living costs. These are all people who should consider making a claim against the estate for provision.
We have extensive experience in advising clients on claims for provision and we can assist to assess your claim and advise on the necessary steps. Let’s face it, people don’t always provide for everyone they should when making a will and although emotionally difficult, a claim for provision can give you peace of mind and reflect your entitlement to your fair share.
Who can dispute a Will?
The best answer to this question is – it depends. Generally the people who commonly contest a will are a wife or husband, de facto or same-sex partner or children of the will maker. However, there are other factors that may be considered such as those in a close personal relationship with the will maker who were financially dependent on them at the time of their death. At Harbourside Legal, our specialist lawyers can give you advice as to your particular circumstances and whether you may be able to make a claim. It’s important not to exclude your eligibility until you seek expert advice as you just may have an entitlement and we can help you maximise your claim. Those eligible to apply are:
- The wife or husband of the deceased person at the time of death;
- A person with whom the deceased person was living in a de facto relationship at the time of their death including same sex partners;
- A child of the deceased person;
- A former wife or husband of the deceased in certain circumstances;
- A person who was at any particular time, wholly or partly dependent on the deceased person, and at any time a member of the same household of the deceased person (for example a step-child);
- A grandchild who at any particular time wholly or partly dependent on the deceased person; and
- A person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.
Is there a time limit?
Yes, there is. An application must be made within 12 months of the date of death. In certain circumstances, we might be able to obtain an extension of the time limit so please contact us to discuss your situation.
What if I cant afford the legal fees?
We have many options available for a clients such as pay by the month, or in most circumstances you can make the payment after you have received your share of the estate. Please speak to one of our estate lawyers for further information in this regard.
What if I don’t believe the Will was valid?
A will generally needs three things to be valid:
- It must be in writing (whether handwritten, typed or printed)
- It must be signed, and
- Your signature must be witnessed by two other people who also need to sign the will.
But even where you’ve met these three requirements, your assets can’t be distributed immediately. Sometimes, a court needs to grant probate first. You can challenge a Will if you believe that the will is a forgery or if the person lacked the mental capacity to make a Will. You can also challenge a Will if you believe that undue influence was brought to bear upon the deceased or if there was fraud involved. Our estate lawyers provide expert advice on assessing the validity of a will. If you have any concerns in relation to a will that you believe may not be valid, it’s important to consult an expert who can give you peace of mind and ensure you receive any entitlements from the estate.
How do I make a claim?
First, contact one of our expert estate lawyers at Harbourside Legal , who can assess your claim and discuss the particular circumstances of your claim. If it’s worth continuing we will contact the executors and notify them of your claim. We will then gather evidence, prepare documents and make an offer to the executors. Many claims are settled through negotiation at this stage. If the matter isn’t resolved then we can lodge documents with the court to initiate proceedings. We can still negotiate and in some cases mediation will be required by the court. Failing all else, we will proceed to a court hearing wherein the evidence will be presented and the judge will make a decision. At every stage of contesting or challenging a Will it’s important to have sound, experienced legal advice. We have the skills to negotiate on your behalf to avoid costly court fees, but if it comes down to court we also have the skills to fight on your behalf. Contact us to find out more or to arrange a consultation with one of our experienced lawyers.