Please select your state

We will show you information specific to your state.

Home | Blog | Contesting a will when there is no will

If a person dies without leaving a Will, is it still possible to make a claim for family provision against their estate?

When a person dies without a Will, they are said to have died intestate, and the distribution of their estate is governed according to law made by Parliament. This will often involve an estate being distributed to the spouse or children of a person. For a more detailed discussion of what happens when someone dies without a will, read our previous blog by Estate Law specialist Alex Munro.

What is a family provision claim

A family provision claim is commonly referred to as contesting or challenging a will. Just because there is no will does not mean you cannot make a claim for family provision. A claimant for family provision under intestacy (when someone dies without a will) is treated in the same way as a person who makes a claim against the estate of someone who has died and left a will.

Who can make a claim

The categories of “eligible persons” (those persons who are permitted to make a claim) is the same regardless of whether someone dies with or without a will. To make a claim, you must fit into one of the following categories: –

  1. A wife or husband of the deceased person;
  2. A de facto partner;
  3. A child,
  4. An ex-wife or ex-husband;
  5. A grandchild; or
  6. A person who was in a close personal relationship with the deceased person.

The next primary issue is whether you have received “inadequate provision” from a deceased person’s estate. This can be a difficult question to answer, although if you receive nothing, or only a token amount from an estate, there is every possibility you have not received adequate provision.

In the same way that you may be excluded from a will, you may also receive nothing under the law of intestacy. An example of this could be a person who dies leaving a spouse, three children and only a modest-sized estate, and that surviving spouse is not the parent of the deceased’s three children (being their step-parent). It is likely that the deceased’s three children would receive nothing, or very little under the law of intestacy. All three children are eligible persons, and have been left without adequate provision, and could therefore make a claim for family provision, even when there is no will.

Get in touch with us

If you have been left out of a will or are unsure as to whether you are entitled to anything from a person’s estate, contact one of our experienced Wills and Estates lawyers today on 13 43 63 for a no obligation discussion of your options. Alternatively, you can chat to us online via LiveChat.

Contact Us

Latest News and Blog

Salvation Army officer sentenced to 16 years imprisonment

16 years imprisonment of Salvation Army officer under tougher sentencing laws.Read More

Workers Compensation: Joint replacement surgery not subject to time limitations

Important clarification of injured workers rights to medical expenses in NSW.Read More