Have you been left out of a will?
Losing a family member is always hard, especially when your inheritance comes as a surprise. If you’ve been left out of a will, you may have the right to claim your inheritance by either ‘contesting’ or ‘challenging’ the will.
Contesting a will, also known as making a family provision claim, means you’re questioning how the benefits are divided among the beneficiaries. On the other hand, challenging a will is about proving the whole will is illegal or invalid. This usually happens if the person who wrote it was not mentally fit or was influenced by someone else when making their choices.
Whether you can contest or challenge a will depends on various factors, like your relationship with the deceased and how the will was created.
Below, we’ll break down both types of claims in detail. If you’d like to chat with a specialist lawyer right away, just reach out to us. Our experienced legal team are here to provide free, personalised advice and support during this challenging time.
Making a family provision claim
To make a family provision claim, you must be an ‘eligible person’. Generally, most states automatically consider the following people eligible:
- Spouses.
- De facto partners.
- Children.
Each state and territory then has its own rules for other eligible people. For instance, in NSW, the following people may also be eligible:
- Former spouses.
- Grandchildren who were partly or fully dependent on the deceased.
- Household members who were financially dependent on the deceased (including stepchildren).
- Anyone who had a close personal relationship with the deceased.
How do I make a successful family provision claim?
Once you’ve established that you’re an eligible person, you’ll need to prove that the deceased has a ‘moral obligation’ to provide for you. This means that they had a moral duty to support your financial future.
When deciding on your claim, the court will consider several factors:
- Your relationship to the deceased.
- The overall value of the estate.
- Your financial situation, as well as the financial situation of anyone living with you.
- Your age and personal character.
- Any evidence that shows the deceased had different intentions, whether in earlier documents or the contested will.
- Any money or gifts the deceased gave you during their lifetime, which can help establish your relationship.
- Other people the deceased may have had a moral obligation to.
Do time limits apply to family provision claims?
Time limits apply to all family provision claims, though the exact deadline depends on which state you’re in:
| State | Time Limit to Contest a Will |
| New South Wales | 12 months from the date of death |
| Victoria | 6 months from the date of probate |
| Western Australia | 6 months from the date of probate |
| South Australia | 6 months from the date of probate |
| Tasmania | 3 months from the date of probate |
| Australian Capital Territory | 6 months from the date of probate |
| Northern Territory | 12 months from the date of death |
| Queensland | You must inform the executor in writing of your intention to dispute the will within 6 months of the date of death. After that, you have 3 more months to file a claim in court. |
No matter where you are, it’s really important to act quickly. Once the assets are distributed, it becomes a lot harder and more expensive to make a claim.
If you’ve missed the deadline, you’ll need to apply to the court for an exception. When determining if you qualify, the court will consider various factors, like your situation, how long the delay has been, and how granting your claim might impact others involved.
To find out the best way to get your delayed claim approved, reach out to us today. Over the years, we’ve successfully handled hundreds of delayed claims.
Will my family provision claim go to court?
In every state, mediation is a necessary step before heading to court. This process involves all parties discussing the issue and usually takes place about six months after you start court proceedings. The key to a successful mediation is thorough and early preparation, which is exactly what our lawyers excel at. We’ll also negotiate on your behalf throughout the mediation process, ensuring you get the best possible result.
From our experience, most family provision claims are resolved through mediation. This is great news for you, since mediation is usually quicker and more affordable than going to court.
However, if the other parties are being unreasonable or denying you your inheritance, the next move is to take your claim to court. This involves filing a statement of claim and serving it to the other party. Both sides will need to submit evidence for the judge to consider.
Before going to court, it’s crucial to have a lawyer on your side — even if you went through mediation alone. The court process can be complex and expensive, and you’ll need strong evidence to back up your case. A lawyer can cover all court and evidence fees, ensure you meet all deadlines, and help you expertly navigate the court process.
Challenging the will
As mentioned earlier, you might want to challenge a will if you believe the deceased wasn’t of sound mind or was pressured when creating it. By challenging a will, you’re aiming to invalidate the entire document.
The group of people who can challenge a will is much wider than those who can contest it. For instance, in NSW, you can challenge a will if you’re:
- A beneficiary named in the current will.
- A beneficiary who was included in an earlier version of the will.
- Someone who would inherit under the law if the will didn’t exist, like the deceased’s next of kin.
What are the grounds for challenging a will?
Once you’ve established your right to challenge the will, you’ll need to clarify your reasons. The most common grounds for challenging a will include:
- Lack of mental capacity: this means your loved one didn’t have the ability to understand their actions due to mental illness or a degenerative condition like dementia.
- Undue influence: this involves someone pressuring or manipulating your loved one into creating a will that doesn’t reflect their true wishes. For example, if a caregiver or a religious group convinced your loved one to leave their estate to them.
- Fraud or forgery: this is when there’s evidence that the will is fake or has been tampered with, such as someone forging the deceased’s signature or altering the will without their knowledge.
- Errors in the will: the will must meet specific legal requirements to be valid, like having the right number of witnesses and avoiding conflicts of interest.
- Changes or cancellation: if there’s proof that the deceased made a new will that replaced the contested one or wanted to cancel the will but didn’t do it properly.
- Confusion or uncertainty: if the language or instructions in the will are unclear, you can challenge it in court. A judge can then interpret what the deceased truly intended.
What to expect from your claim
If you want to challenge a will, you’ll need to file a claim in court explaining why you think the will is invalid. The executor or main beneficiaries will then respond with a defence, arguing that the will should stand.
Both parties submit evidence through ‘affidavits’, which are sworn written statements. The judge will review this evidence and decide if the will is valid. If your claim succeeds and the will is found invalid, the court will determine how the deceased’s assets should be distributed, based on previous wills or any documents showing the deceased’s actual intentions.
Since court cases can be lengthy and costly, it’s crucial to consult an expert lawyer before starting your claim. They can assess your claim, gather strong evidence, and ensure you meet all court requirements, boosting the chances of securing your inheritance. If your claim is denied, your lawyer can also help you appeal to a higher court.
To sum up
It’s incredibly frustrating to be left out of a loved one’s will, especially if you believe you deserve a share of their estate. Unfortunately, disputing a will isn’t as straightforward as just making a claim. To successfully contest or challenge a will, you’ll need solid evidence and a detailed knowledge of the laws in your state.
Our lawyers know the ins and outs of contesting and challenging wills in every state, so you can count on us to ensure your claim ticks all the boxes. We’ll gather strong evidence, build a solid court case, and advocate for you every step of the way. This comprehensive approach gives you the best chance of securing the inheritance you deserve.
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