Have you been left out of a Will?

The death of a family member is a difficult time which can put a strain on relationships or deepen existing tensions.

If the deceased person's Will doesn't make adequate provision for you, or if you are left out entirely, it can be even more stressful.

If you find yourself in this situation, you may have the right to contest the Will.

What is a family provision claim?

A family provision claim is an application that can be made if a person feels that adequate provision hasn’t been made for them from their deceased family member’s estate, or they have been left out of the Will entirely. Sometimes this is called “contesting a Will”.

A Will-maker has freedom of testation – this is the freedom to distribute their assets as they wish when they die. However, in Australia, family provision laws recognise that this freedom must be balanced against the needs of those that the Will-maker had a moral obligation to provide for.

Who is eligible to make a family provision claim?

Not everyone can make a family provision claim.

In New South Wales (under the Succession Act 2006) you are eligible to make a claim if you are:

• A spouse of the deceased person at the time of their death
• In a de facto relationship with the deceased person at the time of their death
• A child of the deceased person
• A former spouse of the deceased person
• A person who was at any time, wholly or partly dependent on the deceased person and was a grandchild of the deceased person or a member of their household at any time
• A person who was living in a close personal relationship with deceased person at the time of their death.

The court will decide what is adequate provision for the applicant’s proper maintenance, education and advancement in life from the deceased person’s estate, considering all the circumstances of the case. For some eligible persons, the Court will also need to be satisfied that there are factors warranting the making of the application.

Strict time limits apply

Strict time limits apply to contest a Will.

A family provision claim can be made whether or not probate or administration of the estate of the deceased person has been granted. In NSW, an application for a family provision order must be made no later than 12 months after the date of the death of the deceased person.

Contesting a Will can be a complex and daunting process. If you are considering making a family provision claim, it is important to seek legal advice as soon as possible.

Our Wills and estates lawyers will listen and provide advice and guidance to manage the process respectfully. Contact us to find out how we can help.