Wills are often overlooked by most individuals.
What many don’t realise is that every person, including themselves, at one point in their life will be affected by this area of law.
There have been numerous incidences where a person’s Will has been improperly written, causing insurmountable emotional and financial stress on their loved ones.
When a Will has not been properly written, many things can happen, including having family member(s) left out of the Will or have them receive less than what they thought they were entitled to.
Do you feel that you have been affected in this way?
Well, you are not alone. These complications exist and are often quite common. But you can do something about it. It is not too late and there is nothing wrong with seeking what you believe you are fairly entitled to.
What can you do?
So what happens if you have been left out of a Will or you just found out you’d be receiving less than what you thought you were entitled to?
Well, in NSW, you have the option to Contest the Will and make what’s called a Family Provision Claim.
Making this claim simply means you seek to be included in the Will if you have been left out of it, or you seek further entitlements if you believe you have been left without being adequately provided for.
Because in Australia, our legal system recognises that everybody properly entitled continues to deserve adequate provisions to assist in their proper maintenance, education and advancement in life upon a person’s death.
Are you eligible?
So, if you are any of the following, you will be an eligible person to make a Family Provision Claim:
- A spouse or a child of the deceased;
- A former spouse;
- A person living in a de facto relationship with the deceased;
- A person who partly depended on the deceased;
- A member of the same household of the deceased; or
- A person who lived with the deceased in a close personal relationship when they died.
When should you make the claim?
If you are thinking of making a claim, then you should act immediately as you only have 12 months from the date of the person’s death to file a claim.
It is also possible that any estate properties mentioned in the Will may be sold, transferred or have its funds spent, so it would be in your best interest to make a claim before it is too late.
What happens when you make the claim?
When you make a claim, usually the matter will be settled at mediation.
Mediation is the process by which a neutral third party called a mediator helps you negotiate a mutually acceptable agreement with all parties involved. This means you don’t have to go to Court.
However, if the matter cannot be settled at mediation, then your claim will be assessed in Court. The following factors will influence a judge’s decision when considering your claim:
- Your relationship with the deceased person;
- Any obligations and responsibilities owed by the deceased person to you;
- The value and location of the deceased person’s estate;
- Your financial circumstances;
- Whether you are financially supported by another person;
- Whether you have any physical, intellectual or mental disabilities;
- Your age;
- Any contribution made by you to increase the value of the estate;
- Whether the deceased person has already provided for you during their lifetime or from the estate;
- Whether the deceased person has provided maintenance, support or assistance to you;
- Whether any other person is responsible to support you;
- Your character;
- Any applicable customary law, if the deceased was Aboriginal or Torres Strait Islander;
- Any other claims on the estate, if any; and
- Any other matter the Court may consider as relevant, if any.
If the judge is satisfied that you have in fact been unfairly excluded from a Will, or that adequate provisions have not been made for you in the deceased person’s Will, then the Court will make necessary orders to fix this for you, so that you receive what you should have been entitled to.
Given the number of factors involved, it is important you seek legal advice on your unique situation, to determine whether you would be eligible and if you would be likely to be successful in a Family Provision Claim.
