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Left out of a Will? Now What?

If you have been left out of what you would say is an ‘unfair Will’, you do have options. It’s always best to seek legal expert advice from an experienced Probate Lawyer as there are time limits.

So What Should You Do?

Firstly it is important to select the right solicitor with experience in contested estate matters. Your Succession Law Lawyer will assess whether you are entitled to make a claim against the deceased estate.

If it is found that you have been improperly left out of a Will, and that you have an entitlement to make a claim, your Lawyer will make an Application to the Court known as a Family Provision Application.

This Application sets out the grounds upon which you are making a claim on the deceased estate and seeks that the Court make an order that you are properly provided for from the Estate.

Who is entitled to Contest a Will?

  • Will Disputes come about because of lots of different reasons. People who may be eligible to make a Family Provision Application include:-
  • the spouse of the deceased (including married, defacto and same sex spouses)
  • a person who has been divorced from the deceased person
  • a child of the deceased person
  • a child of a spouse or domestic partner of the deceased person being a child who was ordinarily a member of the household and was dependent upon the deceased person before his or her death
  • a grandchild of the deceased person
  • a person who was ordinarily a member of the household and was dependent upon the deceased person before his or her death

What are the reasons to be able to Contest a Will?

  • Proper provision was not made for you in the Will;
  • A promise was made to you that you would be left a certain part of the estate and that has not occurred;
  • There was a clear error or mistake in the Will and a Court Order is sought to rectify that error or mistake;

What is proper provision?

A general principle of law is the freedom of testation, that is, you can give your estate to whomever you wish. This can be unfair and unjust, for example, when a spouse or child of the deceased suffers hardship as a result of the deceased’s whims, such as giving money to a particular organisation or ignoring the needs of a dependant.

The Court in looking at whether proper provision was made will look at numerous different issues including, the relationship to the deceased, size of the estate and financial resources of the party making the claim.

What does capacity mean?

Another type of challenge to a Will, apart from a family provision claim, is a claim that the Will is invalid because the Will maker did not have the capacity to make a Will or was under coercion or undue influence.

Adults are presumed by the law to have the ability to make a valid will.

Litigation about testamentary capacity typically revolves around claims that the Will maker or Testator, by virtue of senility, dementia, insanity, or other unsoundness of mind, lacked the mental capacity to make a will.

What is undue influence?

For a Will to be invalid as a result of undue influence there must be more than an opportunity to exert, or a suspicion of, undue influence. There must be a coercion that results in the Will failing to reflect the Will maker’s true wishes – in other words, that the Will maker’s own free will has been displaced.

A person who makes a Will is called a ‘Testator’. Coercion does not need to involve actual violence, force or threats. Undue influence can be notoriously difficult to prove. It is therefore very important that you seek expert legal advice from a solicitor with extensive experience in this area of law.

If you believe you have been unfairly treated under a Will, Call Geoff Brazel, Specialist Estate Lawyer for over 38 years on 4324 7699 to find out where you stand.

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