It’s heartbreaking to be left out will or dealing with an unexpected will at this difficult time. But what recourse do you have? Can you challenge being left out of a will? Or if the will seems unusual or suspicious what options do you have?
If the deceased had a will, there are two ways that it can be challenged.
- Family Provisions Claim.
- Challenging the validity of the will.
Family Provision Claim
A family provision claim can be made by any qualifying person who believes they have been inadequately provided for, even if they have been intentionally left out of the will.
Spouses, de facto spouses and children can make a claim on the deceased estate. Only in some states may step children claim. A person who was wholly or partly dependent on the deceased and lived with them at any time may also make a claim, however it can only be a grandchild or an adult who lived with the deceased (not a paid carer or charitable agency).
The court investigates the relationship between the claimant and deceased, the size and nature of the estate and the applicant’s position in justifying the support. It then considers what ‘adequate’ and ‘proper’ maintenance should be based on the above factors. It considers what the actual needs of the claimant are against the position of the estate to meet the claim.
If successful, the claimant will receive a benefit from the estate, resulting in other beneficiaries receiving less. The claimant can only be paid from any assets remaining in the estate. If any beneficiaries have received their inheritance before the family claim was made this cannot be clawed back.
A family provision claim can be costly with the estate paying legal fees to defend the claim. It also slows down the estate management process as beneficiaries can’t be paid out while the case is in court. Also consider that the other beneficiaries in the will may be upset a claim has been made. If you’re planning a family provision claim, it’s always best to speak with a lawyer first.
Read our article on family provisions for more information.
Challenging the validity of the will
There are 4 main reasons why a will can be legally challenged as being invalid.
- The will maker did not have mental capacity.
- The will maker was unduly influenced.
- There was fraud.
- There are suspicious circumstances.
Read our full article on making a will invalid for more information.
Where the court upholds a challenge
If the court finds that either the will maker did not have mental capacity to make a will, or if they were unduly influenced there are two likely outcomes;
- The entire will is invalid
- Parts of the will are invalid
The entire will is invalid
If the entire will is invalid, the previous version of the will may stand. This is most likely to occur when the new, invalid will contains a standard revocation clause. The revocation clause will not be valid as it the new will was never valid. Solicitors usually hold onto prior wills and can advise on taking a course of action.
If the deceased did not have an earlier will then it would be as if they died intestate, that is, to have died without a will. The state or territory legislation ensures the entire estate is passed on to the closest next of kin; first a spouse, then children, then parents and so on.
Parts of the will are invalid
If part of the will is deemed invalid due to capacity, undue influence or suspicious circumstances then the impacted clauses are removed from the will. The remainder of the will is read in entirety. Suspicious circumstances can be difficult to prove, especially once the will maker is deceased.