What happens if you’re left out of a will?

The experience of losing a loved one is traumatic, heartbreaking and difficult to overcome. This emotional devastation can be compounded by receiving less than expected from the deceased’s will or by being left out completely. We understand how terrible this situation can be, especially if the death was sudden. You may begin to feel hopeless and embarrassed however, you should not as it can happen for a number of reasons. 

Being given less than expected or being left out of a will can happen if there was poor planning on behalf of the deceased, low quality of the will or if your loved one’s death was sudden. Unfortunately, sometimes, there are other deliberate reasons for this consequence such as having a falling out with a family member or a lack of obligation from the lost family member.

Regardless of the circumstances, if you feel that you have been unfairly left out of a will, you may be able to make a claim for your part of the deceased’s estate through a family provision claim. The family provision claim allows you to claim a share or a larger share from the deceased person’s estate however, you must be an ‘eligible person’. 

Who is considered an eligible person?

Only specific persons are able to make a family provision claim. Eligibility depends on where the deceased’s estate is located. In NSW, an ‘eligible person’ includes

• the spouse of the deceased,
• the partner who was living in a de facto relationship with the deceased (including same-sex couples),
• a child of the deceased (including an adopted child),
• a former spouse of the deceased,
• a person who was, at any particular time, wholly (entirely) or partly dependent on the deceased, and who is a grandchild of the deceased or was at that particular time a member of the same household as the deceased and,
• a person with whom the deceased was living with and in a close relationship at the time of the deceased person's death.

If you are unsure whether you’re an eligible person, contact Prominent Lawyers for advice on your status and whether you have an eligible claim.

How do you make the Family Provision Claim?

A Family Provision application is made by filing a summons and affidavit together at the Supreme Court of New South Wales. However, before you apply, we strongly suggest that you seek legal advice to ensure that you have the best shot of securing your claim.

Though some matters are resolved before they commence in Court, others have to go through the full legal process (bear in mind that some are resolved before the final hearing). If you do have to make it through the entire legal process, then your matter will be decided by a judge of the Supreme Court.

What will the Court consider?

Before the Court makes a decision, the judge will consider and analyse several factors that deal with the validity and history of the relationship of the applicant and the deceased, the character and financial situation of the applicant, and the estate. Some of these factors include

• the relationship between the applicant and the deceased person,
• any obligations or responsibilities owed by the deceased person to the applicant,
• the value and location of the deceased person's estate,
• the financial situation of the applicant, including their current and future financial needs,
• whether the applicant is financially supported by another person,
• whether the applicant has any physical, intellectual or mental disabilities,
• the applicant's age,
• contribution/s made by the applicant to increase the value of the estate,
• whether the deceased person has provided for the applicant during their lifetime or from the estate,
• whether the deceased person provided financial and non-financial maintenance, support or assistance to the applicant,
• whether any other person is responsible to support the applicant,
• The character of the applicant,
• any applicable customary law if the deceased were Aboriginal or Torres Strait Islander,
• any other claims on the estate and,
• any other matter that the court may deem as relevant.

Estate litigation is an extremely complicated area of the law. While you are able to file for your family provision claim on your own, we highly recommend that you seek professional services from Prominent Lawyers. Our professional advice will increase your chances of a successful case.

At Prominent Lawyers, we understand that the death of a loved one presents a difficult time. It can be extremely stressful to even begin thinking about contesting your recently deceased loved one’s will. This is why we promise to guide you through the family provision claim, from our initial meeting all the way through to the final hearing. We will hold your hand and ensure that you have nothing to worry about, except for your emotional healing.

Get in touch with us on 1800 77 66 46