Perhaps your much-loved elderly mother has just passed away and you have been unexpectedly left out of her will.
“Why me?” you say, hurtfully and ruefully.
It may come as a shock, but there are numerous reasons why this can occur.
Here are some typical examples we have seen:
- Mum did not update her will:Many people simply forget to update their will to take account of changing personal circumstances. A testator (in other words, the will-maker) who divorced or separated and subsequently re-partnered may not have revised the will to reflect the new relationship or to include or exclude certain beneficiaries.
- Your stay-at-home sister provided care for mum:Your sister may have spent several years caring for mum whilst you and perhaps your other siblings carried on with your lives with little interruption. Your sister may have been favoured to your detriment so you’ve been left out. Whilst it may seem reasonable for your sister caring for your mum to be compensated for her time and services, there may have been little communication with you who was not consulted or given the opportunity to be involved. It is not uncommon for one child to ‘take control’ and make independent decisions regarding the care and financial matters of an elderly parent.
- An incapacitated, vulnerable testator or testator suffering from dementia:The testator may have been influenced by a non-family member who provided comfort in the later years of the testator’s life. The testator’s thinking may have been clouded with little consideration given to a moral obligation to provide for her immediate family members. There may have been some other ‘pressure’ on the testator to leave her significant assets to the beneficiary.
- A disinherited child:Children are sometimes left out of a will because their personalities are incompatible with their parent’s or they have a lifestyle of which their parent disapproves. Estranged children, gamblers and drug addicts are often excluded from a will with the ‘favourites’ inheriting in their place. Sometimes just one heated argument may result in a cursory review of a will that excludes the child.
You may relate to any of these circumstances, or have a story of your own. Every family is different and there are many sides to the story.
Either way, if you are a relative of, or somebody who shared a close relationship with, a deceased person and you have been left out of the will you may be entitled to pursue a family provision claim.
What can you do if you’ve been left out of a will?
If you’ve been left out of a will, you have what is known as a potential family provision claim.
A family provision claim can only be commenced in the Supreme Court of South Australia so it is a serious matter and not to be taken lightly whether you’re the plaintiff (the party claiming) or the defendant (the party against whom the claim is made).
Such a claim allows an eligible person to claim provision from an estate if it can be shown that the deceased person failed to make adequate provision for the applicant’s proper maintenance, education and advancement in life.
An eligible person includes:
- the spouse, former spouse, or de facto partner of the deceased;
- a child of the deceased;
- a person who was wholly or partly dependent on the deceased and who is the deceased’s grandchild or was a member of the deceased’s household at the time of his or her death;
- a person who was living in a close personal relationship with the deceased at the time of his or her death.
The following factors are relevant in assessing a family provision claim:
- your personal circumstances including your age, health and mental state;
- your financial position and needs;
- the circumstances, financial position and needs of other beneficiaries,
- the size of the estate;
- the length and nature of the relationship that you had with the deceased person including your character and conduct;
- whether you made any financial or non-financial contributions to the deceased personally or to his or her property;
- the moral duty and obligation that the deceased had to provide for you in light of acceptable community standards and any other circumstances.
This is a complex area of law and the Supreme Court has a wide discretion to make orders taking into account all of the evidence in a difficult balancing process. No two cases are the same although trends in the different interpretations of this law by the Court in this and other jurisdictions can provide some guidance that only an expert in this area can give.
We have represented and achieved excellent results for many clients with genuine family provision claims.
If you’ve been left out of a will it is important to get legal advice quickly. We will assist in determining your eligibility to make a family provision claim, advise on the applicable time limits and assist you in making and settling your claim. Call us on 08 8276 7955 or email us your query at firstname.lastname@example.org.
This blog is published by Di Rosa Lawyers for informational purposes only and is not considered legal advice on any subject matter. By reading and re-publishing the blog, you acknowledge that there is no solicitor-client relationship between you and Di Rosa Lawyers. The blog should not be used as a substitute for legal advice from a legal practitioner who specialises in the area and you are urged to consult us or seek your own independent legal advice on any specific issue or matter.