What to do if I have been left out of a Will?

Dealing with the death of a close family member is always a very difficult and emotional time. Finding out that a family member has left you out of a Will can often make this traumatic time even more challenging.

The Administration and Probate Act 1958 (Vic) provides the mechanism which makes it possible for you to seek a greater provision from the estate, under certain circumstances.

Eligibility

Not everyone is entitled to seek greater provision from a deceased estate. To contest a Will, you must first be deemed eligible under the Administration and Probate Act 1958 (Vic) (“The Act”).

The Act defines an eligible person to include: [1]

1. a deceased person’s spouse or domestic partner;
2. a deceased’s child, stepchild or adopted child, where they are under the age of 18 years, a full-time student between the age of 18 and 25 years, or suffer from a disability;
3. a deceased person’s former spouse who would have been able to take proceedings under the Family Law Act 1975 (Cth);
4. a deceased person’s adult child, stepchild or adopted child, who is not capable of providing for their own proper maintenance and support; and
5. a registered carer, grandchild or member of the household of a deceased person’s, if that person was dependent (or partly dependent) on the deceased person for their proper maintenance and support.

If you have been left out of a Will, obtaining detailed advice is crucial to be able to determine if you can contest the Will.

Moral duty & failure to make adequate provision

Eligible persons must also be able to demonstrate that:[2]

1. the deceased had a moral duty to provide for their proper maintenance and support; and
2. the deceased failed to make adequate provisions for the applicant’s proper maintenance and support.

In assessing any claim, the Court will consider a wide range of factors, including:[3]

1. the nature of your relationship with the deceased;
2. the size and nature of the estate;
3. your financial need and resources and those of any other beneficiaries;
4. your character and conduct towards the deceased; and
5. any relevant contributions to the deceased’s estate.

Once again, it is important to obtain professional advice as to your eligibility. 

Timeframe

A claim for greater provision from an estate must be brought within 6 months from the date that Probate is granted. [4] Only in exceptional circumstances will a Court allow someone to apply for greater provision after this 6-month period has expired.[5]

How can DSA Law help?

If you have been left out of a Will or have been inadequately provided for in a Will and believe you could benefit expert legal assistance, please Contact Us or one of our Wills & Estate Lawyers at DSA Law on (03) 8595 9580.

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[1] Administration and Probate Act 1958 (Vic), s 90.

[2] Ibid s 91.

[3] Ibid s 91A.

[4] Ibid s 99(1).

[5] Ibid s 99(2).