When a person dies, it is often a troubling time. When a person
finds out they have been left out of a Will it can increase the
stress, particularly if that news comes as a surprise. There are
two main things to consider if you have been left out, if you are
considering what your legal rights are: are you an eligible person
and, if so, what are your needs to be provided for?
Who is an eligible person?
A spouse or a child of the deceased are considered to be
eligible persons. There is a third category that defines any person
who was in a relationship of financial dependence with the deceased
to be eligible. We are waiting for a few decisions to be made
giving us examples of what types of people may fall into this
category. But until it is thought that some types of carers who are
paid in kind (perhaps with free food or board) for their assistance
and grandchildren who receive financial support from the deceased.
But it is still a fairly untested category.
What kind of needs does the Court consider?
When making a claim you will need to provide solid evidence of
your financial circumstances: what assets you own, how much super
you have, your income, your debts and any future needs (such as
medical and education expenses). If you have a spouse, the same
information will be required from them too. Then your position will
be compared to those named in the Will (the beneficiaries). If you
are in substantially worse of position, the Court may order that
some of the estate is given to you. The Court will also consider
your relationship with the deceased, any of your conduct that may
be relevant to why you were left out in the first place and of
course, the wishes of the deceased. After all, the fact they choose
to disinherit you will not be ignored by the Court.
It is very important to know that you only have 12
months from the date of the deceased's death to file your
Summons, commencing your claim. Although it is possible to commence
an action after 12 months has passed, you need to convince the
Court that they give you their permission to start your
Because of the strict time requirements
imposed by the Court, if you have been left out of a Will you
should legal advice as soon as possible with our experienced estate
A note to those people who have a Will already or are
considering making a Will that will leave someone out. It is very
important that you meet with an experienced Will practitioner to
discuss your particular circumstances and what can be done to
protect your estate against silly claims.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The WA Supreme Court has recently refused a plaintiff's application to extend the time to bring a claim against an estate.
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