I Have Been Left Out Of A Will. What Can I Do?

by | Jul 13, 2020 | Litigation, Wills & Estates

The death of a loved one is difficult.

Unfortunately it can become more difficult should you have been left out of the Will or if the provision made for you in the Will is not what you had expected. 

The law recognises a basic principle of freedom to testation – that is the power of a person to leave his or her estate as they see fit.

This principle can be modified for ‘eligible persons’ by Part IV of the Administration and Probate Act 1958 andis generally known as a ‘family provision claim’.

The following people are ‘eligible’ to seek a ‘family provision order’:

  • A spouse (current or if not divorced);
  • A domestic partner;
  • A child (including some step-children); and
  • In some circumstances a person who was living with the deceased.

If you believe that you may be entitled to make a claim, you need to act quickly – applications must be made within six months of probate or letters of administration being granted.

It is best to seek expert legal advice as soon as possible, to know your rights and avoid missing the time limit.

Ways to Contest a Will as a Valid Expression of the Deceased’s Intentions

Applying for a family provision order assumes that the Will is valid.

What of circumstances in which there is doubt that a Will is valid?

There are four main ways of contesting the Will to have it declared invalid:

  • Undue influence – should you believe that the deceased was pressured into making his or her Will and its provisions do not reflect what the deceased would have intended;
  • Lack of capacity – should you believe that the deceased has not had capacity to make the Will (eg: dementia, Alzheimer’s, etc);
  • Coercion – that the deceased was forced into making the Will
  • Fraud – that the Will is a forgery

How Can Nevett Ford Assist You?

The team at Nevett Ford has a long history of acting on behalf of both those who want to contest a Will as well as executors and administrators in defending these claims. 

If you have any queries at all in relation to a Will, please contact us at 03 9614 7111 or email melbourne@nevettford.com.au.