Rainey Collins Lawyers

What can I do if I have been left out of a Will?

By Claire Coe, Friday, 20 January, 2012, Wills & Estates

It is a very stressful time when a relative or close friend dies, but this can be made even worse if you find out you have been unexpectedly left out of a Will?   There are four different ways you can apply to the Court for a share in an estate.

1. Promises
   
   If you have performed a service or have done work for the deceased, and they promised to reward you in their Will but didn’t, then you can make a claim against the estate. An example of this situation is if you have provided substantial unpaid care for a person on the basis that they promised to give you a share of their property after their death.

   The promise to reward the worker in the Will must be related to the work provided. It would not be enough if you were doing the work out of the goodness of your heart and then decided that you deserved payment. The amount awarded by the Court will be confined to reasonable compensation for the work actually done for the deceased.

2. Challenge the Will
   
   When a person makes a Will they must be of sound mind and must not have been unduly influenced or fooled into making any provisions in the Will. If you think that the deceased was not of sound mind, then you can apply to the Court to have the Will declared void. Medical evidence would be needed to establish their condition. Once that has happened the estate would be divided according to the last valid Will. If there was no previous Will, then the situation is called an intestacy. In an intestacy, property is divided between surviving spouses or de facto partners, children, parents and siblings according to set rules.
3. Family Protection
   
   The law imposes a moral duty on people to adequately provide for the proper maintenance and support of certain people entitled to provision from their estate. This includes the deceased’s spouse, de facto partner, children, stepchildren, grandchildren and parents.

   The duty to provide for the above people is not limited to those who are in financial need. Many well off claimants have received substantial payments from the estate for non-financial reasons, such as to acknowledge that a person belongs in the family. The amount of payment varies dramatically between cases as it depends on all of the circumstances of the particular case.

4. Relationship Property
   
   A spouse or de facto partner of a deceased person can claim half of the relationship property, under the law that deals with the division of relationship property. The only exception to this is if the couple had signed an Agreement Contracting Out of the Act during their relationship.

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