I have been left out of a Will – What options do I have?

If a person close to you has recently passed away and you have been left out of the Will, we look at what options you may have and whether you are entitled to a share of their estate.

Did the person die with a Will?

If the answer to this question is yes, then the deceased person’s estate will pass in accordance with terms of their Will unless a successful claim is made against the Will such as a family provision claim.

If the answer to this question is no, then deceased person’s estate will pass in accordance with the rules of intestacy. You can visit our blog on “What happens if you die without a Will”  for more information on this.

What is a family provision claim?

A family provision claim is a term used to refer to when a person makes a claim on a deceased’s persons Will for further provision.

It is a common misconception that anyone can bring a claim against a person’s Will, however this is incorrect. In NSW only certain people, known as ‘eligible persons’, are able to make a claim for further provision from the deceased’s estate. The classes of eligible persons are as follows:

  • A spouse (this includes a wife, husband or person in a de facto relationship);
  • A former spouse;
  • A child;
  • Any person who was wholly or partly dependent on the deceased and was a grandchild or member of the deceased’s persons household.

If you do not fall into one of the above classes, then you are NOT eligible to bring a claim.

There are a range of factors taken into account in determining whether a de facto relationship existed. Some of those factors include:

  • the duration of the relationship;
  • a mutual commitment to shared life, such as owning assets together and socialising together;
  • the care and support of children; and
  • sharing household duties.

What is the process for making a claim?

If you believe you fall within one of the above classes, then you are eligible to bring a claim.

In limited instances, a claim can be resolved by the interested parties without the need of court intervention.

If the claim cannot be resolved informally, then the next avenue is to commence a formal family provision claim in the Supreme Court of NSW.

It is important to seek legal advice on your eligibility and likelihood of success prior to commencing a family provision claim. This will allow you to weigh up the costs, timeframe and emotional toll of court proceedings against the likelihood your claim will be successful.

If you have any questions or should you need any assistance, please do not hesitate to contact us at Southern Waters Legal.