Losing a loved one, family member, or friend is a very emotional time. It can also be a very challenging time if the deceased’s Will provides something which is different from what you expected.
If you think you should have been provided for in someone’s Will, but no provision was made for you, or you think the provision made for you was inadequate, you may be able to make a claim against the deceased’s Estate.
There is a duty under the Family Protection Act for the deceased to provide for the proper maintenance and support of their spouse, de-facto partner, child, or grandchild. These people may have a claim if they were not provided for adequately in the deceased’s Will. Stepchildren can only claim if they were being financially supported by the deceased at the time of death.
There is no ‘set amount’ for what constitutes proper maintenance and support. However, if you consider the deceased has not provided adequately for you, please get in touch with us so we can advise you about the eligibility and strength of your claim. Our advice will be tailored to you and your circumstances.
If, during their lifetime, the deceased promised that they would provide for you in their Will because you performed a service for them (for example, if you looked after them), but the deceased didn’t update their Will to give effect to that promise, you may be able to claim against the deceased’s Estate to have that promise enforced.
If you were married to, or in a de-facto relationship with, the deceased it may be in your interests to seek a division of relationship property between you and the deceased’s Estate if:
(a) The deceased made no provision for you in their Will;
(b) The deceased died without a Will; or
(c) The amount the deceased left to you in their Will was less than 50% of their total Estate.
Sometimes, seeking a division of relationship property, rather than giving effect to the terms of the deceased’s Will, or receiving your share under an intestate Estate, can result in a better financial outcome for the surviving spouse or partner. Working out which option is best for you is a process which involves classifying the deceased’s assets as relationship property or separate property and calculating various outcomes. We can assist you with this process.
There are time limits for making these sorts of claims against an estate. We recommend you get in contact with us as soon as possible to ensure that your claim is made promptly, and within the necessary timeframe following the deceased’s death. If you do not bring your claim in time, there is a risk that you may miss out.
If you want to discuss any of these matters further, do get in touch with Emily Flaszynski, Principal (DDI 03 343 8454 / firstname.lastname@example.org) or Rachel van Eekelen, Associate (DDI 03 343 8583 / email@example.com) to arrange an appointment to discuss.