Have you been left out of a Will?

The death of a family member is always a challenging and emotional time, which can exacerbate existing tensions or create new strains in relationships. When a loved one’s will does not provide adequately for you, or if you are completely excluded, the situation can become even more distressing.

In such cases, you might have the right to contest the will. This process is known as making a family provision claim.

What is a Family Provision Claim?

A family provision claim is an application made by someone who believes they have not received sufficient provision from a deceased family member’s estate, or who has been excluded from the will entirely. This is commonly referred to as “contesting a will.”

While a will-maker in Australia has the freedom to allocate their assets as they choose upon their death (freedom of testation), family provision laws recognise that this freedom must be balanced with the moral obligations the deceased had toward certain individuals.

Who is Eligible to Make a Family Provision Claim?

Not everyone is eligible to contest a will. Under the Succession Act 2006 in New South Wales, you may be eligible to make a family provision claim if you are:

  • The deceased person’s spouse at the time of their death.
  • In a de facto relationship with the deceased at the time of their death.
  • A child of the deceased person.
  • A former spouse of the deceased person.
  • A person who was, at any time, wholly or partially dependent on the deceased, and was either a grandchild or a member of their household.
  • Someone who was in a close personal relationship with the deceased at the time of their death.

The court will determine what constitutes adequate provision for the applicant’s proper maintenance, education, and advancement in life, taking into account all relevant circumstances.

For certain eligible individuals, the court must also be satisfied that there are justifiable reasons for making the claim.

You should always contact a lawyer if you feel you have a claim and would like to contest the will.