I’ve been left out of will. Now what? – 2023 update

Discovering that you have been unfairly excluded from a loved one’s will can be upsetting and overwhelming from both an emotional and financial perspective. Challenging a will is known as a Family Provision Claim, and following the process correctly and in abidance with the law is crucial to a successful outcome.

How do I know if I’ve been excluded?

To contest a will, you must be considered an Eligible Applicant at the time of the deceased’s death. Although there are some nuances around each category, this typically means you were:

  • A spouse or former spouse
  • A de facto partner
  • A child (biological or adopted)
  • A grandchild that was financially dependent on the deceased
  • A household member that was also dependent on the deceased
  •  A copy of the will must be obtained from the executor of the estate to confirm that you have been unfairly excluded or inadequately provided for in the will.
When do I need to seek legal advice?

Time is of the essence when challenging a will. Under the Administration and Probate Act 1958, eligible individuals have six months from the date probate is granted to contest a will (i.e. the date the will is validated by its executor). Failing to initiate legal proceedings within this timeframe may result in the court denying your claim. To put simply, you need to seek legal advice as soon you believe you have been unfairly excluded.

Initiating legal proceedings without the help of an experienced wills and estates lawyer can be costly in the long run. Sound legal advice can assess the validity of your claim, help you to understand your entitlements, gather required evidence and navigate the complex processes ahead.

Do I have to go to court?

It is common for involved parties to attempt mediation to avoid going to court, which can be emotionally and financially taxing for all parties involved. With legal representation, mediation involves engaging in discussions with the executor/s and other beneficiaries to facilitate a fair and mutually agreeable outcome.

If mediation fails to reach a satisfactory resolution, court proceedings may be necessary. Your lawyer will file a claim with the Supreme Court of Victoria which outlines the grounds on which you believe you have been unfairly excluded from the will. The court will carefully consider the evidence presented and decide an outcome based on the relevant legal principles and the unique circumstances of the case, including the impact it may have on the beneficiaries and any other claimants. The items typically considered by the court include:

  • The deceased’s will
  • Any evidence of the deceased’s reasons for making the dispositions in the will
  • Details of the nature of the relationship between the eligible person and the deceased
  • Any obligations or responsibilities of the deceased to the eligible person, any other eligible person and the beneficiaries of the estate
  • The size and nature of the estate and any charges and liabilities to which the estate is subject
  • The financial resources, including earning capacity and financial needs at the time of the hearing and for the foreseeable future of the eligible person, any other eligible person and any beneficiary of the estate. This may include the expectation of possible future inheritance from another family member.
  • Any physical, mental or intellectual disability of any eligible person or any beneficiary
  • The age of the eligible person
  • Any contribution of the eligible person to building up the deceased’s estate
  • Any benefits previously received
  • The liability of any other person to maintain the eligible person
  • The character and conduct of the eligible person
  • The effects a Family Provision Order would have on the amounts distributed to other beneficiaries
  • Any other matter considered relevant by the court

How long does it all take?

The duration of contesting a will can vary significantly depending on the complexity of the case, court schedules and any potential appeals. While some cases may be resolved within a few months, others can take a year or longer to reach a final decision. At Waters Lawyers, we will always provide you with a realistic timeline based on the specifics of your situation.

How much does it cost and who’s responsible for paying?

Again, the costs associated with Family Provision Claims can vary greatly depending on the complexity and duration of the case. Legal fees, court filing fees, expert witness fees (if applicable) and other disbursements contribute to the overall expense.

Typically, you are responsible for paying your own legal costs. However, in many cases, the parties usually agree to have their costs paid from the estate if the matter is settled outside of court (i.e. through mediation or negotiation). Given the high fees associated with court proceedings, it is in the best interests of all parties to resolve the dispute as quickly as possible.

How can Waters Lawyers help me?

At Waters Lawyers, we will always be upfront and honest with you from the initial consultation, so you understand the anticipated financial implications of challenging the will and the likely outcome of the claim. Contesting a will can be emotionally challenging, especially during a time of grief. Having the support and guidance of an experienced lawyer will help ensure your rights are protected and increase the likelihood of a favourable outcome.

To book your FREE and non-obligational initial consultation, book online or contact our friendly team on (03) 5996 1600.

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