Everyone is eligible (and is indeed encouraged) to make a last will and testament so that their estate can be appropriately dissolved and they can pass on certain benefits to named individuals. Of course, the law does not require anyone to do this, and even if they do, they're not required to tell anyone other than the executor about the contents of the will. It may, therefore, come as something of a surprise to an individual who was close to the deceased if they were not included or even mentioned in the document. In fact, this may be more than a surprise and could be a significant issue for those who may otherwise have been dependent on this person. If you find yourself in this position, is there anything you can do about it?
The Surprise
Usually, the person making the will makes adequate provision for those who could be classified as dependent and will be left behind once they are deceased. This may include a spouse or children and, in some circumstances, other individuals as well. While the will maker may have their own reasons for taking a different approach to exclude somebody from the will, the person who is left out may nevertheless be able to contest the situation.
Family Provisions
In law, it is possible to make what is known as a family provision claim should you feel that you will be adversely affected by the omission. There are certain rules that dictate whether you are eligible or not, and you need to follow a specific procedure, but if so, you can make an application to the court, which they will consider and rule upon.
Eligibility
Those who are eligible may include the surviving wife or husband, somebody who was living in a de facto relationship, a child (whether adopted or not) and somebody who was dependent on the deceased person, whether wholly or partly. This latter category could be quite broad and open to interpretation, and if your claim would be based on this situation, you will have to clearly show just how dependent you were. Likewise, if you did receive a benefit from the will but were unhappy with the amount, you will need to show that it is insufficient to cover your ongoing support and maintenance.
Building Your Case
Should the court find in your favour, they have the authority to alter the will so that your share is more appropriate. However, you will need to put forward a very strong case in your defence and it's best if you work with an experienced lawyer to help you. Contact wills and estates lawyers in your area to learn more.
Share27 December 2019
Hello, my name is Sandra. I live with my two children in Eastern Australia. I have recently come through a very difficult divorce. My ex-partner used to drink too much and he wasn't a very good husband or father. The final straw was when I discovered he was having an affair. I filed for divorce the same day. I knew that getting divorced would be difficult but I didn't realise just how difficult. My husband did all he could to make it hard for me and the kids. Thankfully, I found a fantastic family lawyer who helped me through the entire process. I won custody of the kids and my husband has been asked to pay child support. I decided to start this blog to help others who are going through a divorce.