The loss of a family member is always a difficult time, but it can become more distressing to learn that you have not been included in the family member’s Will or if you have to defend a claim.
Generally, a person free to leave their assets to whomever they wish. However, the law recognises that there are people whom the deceased had an obligations to make ‘adequate provision for their proper maintenance, education and advancement in life but are sometimes left out of the deceased’s Will. Those persons may therefore be able to claim that the Will is invalid or make a claim for a share or larger share of the estate so that their needs are adequately provided for.
There are two ways to challenge a Will:
- The validity of the Will may be challenged on the basis that the Will maker did not have the legal capacity to make the Will, signed the Will under duress or undue influence; or
- Family Provision Claims are claims for a share of the estate, if you have not been provided for or a claim for a larger share of the estate. These claims are made on the basis that the Will maker failed to make ‘adequate provision’ provide for a family member where they had a moral obligation to do so.
Family Provision Claims are the most common challenges to Wills. Only persons who qualify as eligible persons under the relevant State or Territory Act may apply to the Court for further provision from the estate. Eligible persons are often next of kins.
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 the Will does not make adequate provision for your proper maintenance, education or advancement in life.
It is important to note that family provision claims are subject to strict time limits, which in the ACT is within 6 months of the grant of Probate or Administration, and in NSW is within 12 months from the date of death.
If you are concerned, please be sure to contact us as soon as possible or you may be prevented from making a claim.
Certain people have a statutory right to a copy of the Will of a deceased person. It is a good idea to get a copy of the last Will of the deceased so that we can discuss your options more actually and in detail.