If you are a beneficiary under a Will and you believe that there has been an inequitable or unfair distribution of the Will, then you are able to take action to rectify the distribution. If you have been left out of a Will altogether, then you are also able to take action to receive an equitable and fair distribution from the Estate of the deceased.
These types of actions fall under ‘family provision claims’ and can be made if you have been left out of a Will altogether, or if you believe your inheritance under the Will is inequitable and unfair.
There are strict time limits in challenging a Will and you need to take action as soon as possible. The longer you delay seeking legal advice, the more likely that the assets in the Estate of the deceased will be distributed which adds an additional stress in recovering as these assets will need to be recovered.
Under the legislation to make a family provision claim you must first be an eligible person. Eligible persons include:
-A spouse of the deceased at the time of their death
-A de facto partner of the deceased at the time of their death;
-A child of the deceased;
-A former spouse of the deceased;
-A person who was wholly or partly dependent on the deceased and was either a grandchild of the deceased or a member of the deceased’s household;
-A person who was living with the deceased in a close personal relationship at the time of their death.
If you are an eligible person then the Court will consider the following matters when deciding whether to grant your application:
-Your relationship with the deceased including the nature and duration of the relationship;
-The nature and extent of any obligations or responsibilities owed by the deceased to you and any other beneficiary of their Estate;
-The size of the deceased’s Estate;
-Your financial resources and financial needs as well as the financial resources and financial needs of any other beneficiary of the Estate;
-The financial circumstances of any person you are cohabiting with;
-Any physical, intellectual or mental disability of you and any other beneficiaries of the Estate;
-Your age;
-Any contribution you made to the improvement or conservation of the deceased’s Estate;
-If you received any provision from the deceased whilst they were alive;
-The testamentary intentions of the deceased;
-Whether you were being maintained, wholly or partly, by the deceased; and
-Your character and conduct before and after the death of the deceased.
If you have missed out on an inheritance under a Will or you believe that the distribution of a Will is inequitable or unfair then speak to an expert Probate specialist as soon as possible.
Graeme Heckenberg is an expert Wills and Estate lawyer.
Call today for a an appointment closer to home on 9221 0341
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