The loss of a family member is usually a difficult time. However, it may be even more distressing to learn that you have not been included or adequately provided for in the family member’s Will.

A person may leave their assets to whoever they wish. However, if you have been left out of or inadequately provided for in a Will, you might consider challenging the Will or contesting the estate.

That can be done in the following ways:

  1. the validity of the Will may be challenged on the basis that the person who made the Will:
    1. did not have the legal capacity to make the Will, or
    2. did not understand what they were signing, or
    3. there was undue influence placed upon the Will maker when the Will was made; or
    4. there was fraud involved; or
  2. a claim under the Family Provision Act (1972) might be made on the basis that the person who made the Will failed to provide or adequately provide for the proper maintenance, support, education or advancement of a family member.

Under the Family Provision Act (1972) there are categories of persons related to the maker of the will who might be eligible to apply for a family provision order. These are:

  • a spouse or de facto partner;
  • a child of the will maker who is living at the date of death of the Will maker or born within 10 months of the Will maker’s death;
  • a former spouse or de facto partner who, at the date of death, was receiving or entitled to receive maintenance from the deceased;
  • a grandchild of the deceased;
  • a stepchild of the deceased; or
  • a parent of the deceased.

It is important to note that there is a strict time limit in which to commence a claim under the Family Provision Act (1972). A claim may not be brought, without leave of the court, after 6 months from the date of the Grant of Probate.

You may not need to go to trial as the courts generally encourage mediation to avoid unnecessary legal costs and/or lengthy delays in the legal process.

If you believe you may have a claim or are unsure about your possible entitlements under a family member’s Will, please contact Frichot & Frichot.

For more information, assistance or please call us on (08) 9335 9877 or complete the form below to request an Introductory Consultation.

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