Posted on 23 Mar. 2014
Can I contest a Will because it is unfair?
By Slater and Gordon
There are plenty of legitimate reasons why someone may feel they have been unfairly accounted for in a Will.
In Australia, you can contest a Will if you feel you have been inadequately provided for or you were left out altogether. The law allows people who feel they have been unfairly or inadequately provided for to make a claim for a larger share of an estate.
A person may choose to contest a Will for being unfair in the following situations:
- They were estranged from their parent at the time of death. The estranged relationship may have been brought about by the parent’s ill treatment.
- They gave up employment to nurse for their ill spouse or de facto partner or parent, and may not receive an appropriate compensation for his/her sacrifice.
- They suffer from a disability, and their family member and carer has not accounted for their additional needs or the fact they are unable to care for themselves.
What happens if the deceased did not leave a Will?
When a person passes away without a Will, laws made by the government known as ‘rules of intestacy’ are used to decide how a deceased person’s estate should be distributed.
Under the ‘rules of intestacy’ a large portion of the deceased person’s estate is usually allocated to their husband or wife. This often means others who were dependant on the deceased are unfairly provided for or left out altogether. Fortunately, the law does allow Wills to be contested and altered regardless of whether the deceased left one or not.
What the Court will look at
Regardless of the situation, the courts will change the distribution of the estate after taking into consideration the following:
- The closeness of the relationship with the deceased
- The needs of the applicant relative to the other beneficiaries
- Any special relationship
- If there was an obligation on the deceased to provide for the applicant
If you want to contest a Will, we strongly recommend that you seek prompt legal advice to ensure that your entitlements are fully protected. Time limits apply.
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