Have You Been Left Out Of A Will? What You Can Do

If you've been left out of a Will, you may be able to make a claim against it. In this post, we look at what options are available and how they work.

Before you start any legal proceedings, a good first step is to talk to the Executor of the Will. The Executor is responsible for overseeing and carrying out the terms of your loved one’s Estate, so you should ask them why you have not been provided for adequately or left out altogether. This may help clear up matters before they become more serious.

If you are the intended beneficiary of a Will and feel that the testator has unfairly left you out, or not provided for you adequately, there is a possibility that you may be able to make a claim against their Estate. This is known as a Family Provision Claim, which is typically made by the children (including adoptive and step children), spouses or de-facto partners of the deceased.

In order to do this, however, it must first be proven that they had an obligation, under law, to provide for you. If they did have such an obligation (for example, because of a family relationship) and they failed to fulfil this duty, then your claim could be successful.

You can apply to the Court to overturn a Will as long as any of the following can be proven:

• There is evidence that the deceased did not create the document, for example the signature is noticeably incorrect compared with other legal documentation.
• If the Will was written by someone who wasn't qualified to do so (ie a Solicitor), it's possible for a Court to overturn the Will and declare that it does not exist. The deceased may have been tricked into signing a document they didn't understand at all due to dementia or poor health, for example.
• If you know the deceased lacked capacity to make a Will. For example, they had dementia and couldn't write their own name when they died.
• If there are other signs of mental illness in their history (such as mental health treatment records) that could have impacted their soundness of mind in creating a Will.

The Court may look at all your financial circumstances, including your assets and income and compare those with those of other people named in the Will. This is known as "comparative justice" and it's something that happens when someone is left out of a Will (or inheritance).

The Court will also consider whether you have any dependents who rely on you for support, such as children or elderly parents. If there are other people with a greater need for the money than yourself, your claim may not be successful.

If you decide to bring a claim against the Estate, your costs are likely to depend on the type of claim that you make. If the claim is successful, then those costs will be recovered from the Estate. However, it's still worth considering how much time and money will be involved in bringing a claim.

In some cases where there is a conflict between beneficiaries on matters such as who should receive an inheritance or what property should be sold to pay off debts, it may cost more for each beneficiary than if all parties were able to agree on how to deal with their entitlements.