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The death of a family member or loved one is challenging, no matter the circumstances. But discovering that you’ve been excluded from a will can be a surprising, final emotional gut punch.
If you’ve been unfairly left out of a loved one’s will, or have received a portion of the estate that is too small, the legal experts at Gerard Malouf & Partners may be able to help.
Everyone’s reason for disputing a will is different and personal. Some of the most common include financial need, family issues or possible ambiguity in the language of the will. For many, contesting a will can help provide a level of closure that might not have been possible without legal intervention.
At Gerard Malouf & Partners, we recognise the sensitivity of contesting a will and we ensure your case is handled with due care and attention.
To contest a will in Australia, one must be able to show that they are an eligible person. The exact definition of an eligible person will vary in each state, however, it generally encompasses the spouse of the deceased and any dependents they may have had. In New South Wales, for example, the list of eligible people, as decreed in the Family Provision Act 1982, include:
The current spouse or a former spouse.
This includes anyone who was the husband or wife of the deceased, including from marriages ending in divorce or annulment. In addition to people who have been legally married to the deceased, a de-facto partner or a life partner are also considered eligible. A de-facto partner is someone who lived together with the deceased for an extended period of time, usually at least two years, without separation. A de-facto partner or life partner will typically have to present evidence of domestic living since there is no official documentation of partnership status, as there is in a marriage.
Children or grandchildren of the deceased.
This category includes both biological children and grandchildren, as well as step-children, or the children of a domestic partner.
Any other dependents.
A person who was wholly or partially dependent on the deceased for their financial well-being may be able to qualify as an eligible person in some circumstances.
If you don’t qualify as an eligible person, you can still contest a will if you can provide evidence that the deceased promised to give you something in their will, and that this promise was not kept. A legal professional can help you determine if your relationship to the deceased qualifies you to be eligible.
In addition to establishing you are an eligible person, you must be able to demonstrate to a court that the deceased had a moral responsibility to support you financially and that you are in need of provision. Typically, moral obligation is implied for the spouse or children of the deceased. However, this issue can get complicated in situations where the plaintiff was estranged from the deceased for many years.
In addition to demonstrating that the deceased had a moral obligation to you, a successful contest will demonstrate that you have a need for funds or were financially hurt by the deceased passing. This often goes hand in hand with being partially or fully financially dependent on the deceased. In situations where the plaintiff is trying to establish that a will distributes assets in an unfair manner, such as an uneven split between siblings, showing financial need is absolutely essential.
Overall, the most important factors a court may take into consideration when deciding on a case include:
It is important to note that there is a difference between contesting a will and challenging a will. While a contest focuses on the fairness of the will, a challenge questions the validity of the document. This is done in situations where the plaintiff believes that the deceased was coerced when they wrote the will, or was not in a sound mental state. In some cases, a person may believe that the will is a work of fraud or forgery.
To begin the process of contesting a will, you and your solicitor must inform the executor of the estate of the deceased that you intend to make a claim. You should also attempt to get an injunction on the executor that prevents them from distributing the estate while you are involved in litigation. If the estate is already distributed, it can complicate your case in several ways. For example, the beneficiaries of the estate may already spend their money, making it impossible for any of it to be recovered for your claim.
From there, you and your solicitor will begin the process of gathering evidence and preparing for court. This will typically involve an overview of your relationships with the deceased and any relevant members of your family, such as other beneficiaries, as well as a detailed look at their assets. You will also most likely need to disclose your own financial situation, with proving documents, as a means of establishing unmet needs.
Once you’ve built a case that you’re sure is ironclad, it’s time to try to work toward a settlement with the executor of the estate. In many cases, a settlement can be reached before an appearance in court is necessary. While these can be a time and money saver for both parties, it does come with risks. By settling early, you don’t get to see all of the other side’s disclosed evidence, and it may be hard to tell if the estate is providing less than it should.
If you choose to avoid an early settlement, or if an early settlement attempt fails, the case will go to court. However, that doesn’t mean that negotiating with the estate is over. In most cases, a judge will want both parties to attempt to find an agreeable outcome in mediation before a case can proceed. Even if an agreement is reached in mediation, it must still be approved by the court. This means that you will still have to gather all of the relevant evidence for your case.
If both the settlement negotiation and mediation processes fail, your case will go to court. While reaching court is a rare step, typically reserved for the most bitter legal fights, it is sometimes necessary. As with every other part of the contesting process, the support of an experienced legal expert is paramount to securing a successful outcome.
The process for contesting a will can be complicated. For many still going through the grieving process, it can be especially trying. A skilled solicitor can help you navigate each step, providing advice on how to best make your case and greatly increase your chance of a positive outcome.
The time limit in which a person is able to contest or challenge a will is limited and varies from state to state.
In New South Wales, a claim must be brought to court within 12 months.
In Victoria and the Australian Capital Territory, meanwhile, the limit to dispute a claim is only 6 months.
Even if you have time to go on your state’s statute of limitations, it is still important to take action as quickly as possible. If the estate has already begun distributing assets, something that typically happens well within a 12-month period if there aren’t challenges, your case may be difficult to make.
In one recent case, from June 2020, our lawyers were able to assist the children of a recently deceased man each secure $50,000 payouts from his estate. Both of our clients had been estranged from their father for two decades but were hurt deeply by this final exclusion. Despite the potential hurdles, we were able to demonstrate that the deceased had an obligation to provide for his children. To achieve this, we created an affidavit that clearly articulated the relationship each son shared with their father, the reason for the estrangement, their current personal and financial circumstances and how they intended to utilise any provision made for them from their late father’s estate. After presenting our supporting evidence, we began informal negotiations with the estate, resulting in a satisfactory settlement without resorting to a lengthy stay in court.
In another recent case, from March 2020, we secured our client a $70,000 settlement from the estate of her late father. The woman’s father was not a part of her life until she was 42 years old, at which point he wrote her a letter expressing regret that he had not been present. From that point until his death, the woman and her father developed a cordial relationship that included phone calls on birthdays, Father’s Day and Christmas. However, shortly before his passing, her father informed the woman that he was planning on selling his property and she would not be seeing the proceeds.
For us, the case was clear-cut. In addition to being an eligible person, based on her relationship with her father, the woman had a clear financial need, as she was short on funds to cover a double knee replacement, as well as other necessary medical services. In addition, her superannuation fund was extremely limited, making future financial stability uncertain. As a result, we were able to secure a payout from the estate through the mediation process. Our client was thrilled as it allowed her to continue medical treatment and plan for her financial future.
Have you been excluded from a will or do you believe the amount you have been left is inadequate? Contact Gerard Malouf & Partners today for a free consultation on your legal rights to contest a will.
To learn more about will dispute claims, your legal rights and how to process a claim, please call us or visit our dedicated Contesting Wills website.
Download your guide today for free and make sure that you are aware of the facts and information you need to maximise your damages claim.
For further information, visit our dedicated Will Dispute claims website.
Download your guide today for free and make sure that you are aware of the facts and information you need to maximise your damages claim.
Meet some of the diverse and dynamic compensation lawyers that support our clients with their Will Dispute claims.
Call us now on 1800 004 878 to book a free appointment with one of our compensation experts, or make an enquiry online now.
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