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Home | Blog | Left out of a will? Can I claim?

I’ve been left out of a will. Can I claim?

If you have been left out of or have been unfairly treated a will, you may be entitled to make a claim on the estate.

The law specifies who is entitled to make a claim on a deceased person’s estate. As expected, husbands, wives and partners (in inheritance law called “domestic partners”), as well as children and grandchildren, are eligible to make a claim.

You may be surprised to know that people who have divorced a deceased person are also able to make a claim, however, it is often difficult for such persons to prove they ought to be maintained by the deceased.

Parents and siblings of a deceased person can also make a claim, as well as children of a deceased person’s spouse or domestic partner. As for these claimants, however, it is not as simple as just proving their relationship to be eligible to make a claim, they also have to prove something further.

Parents and siblings of a deceased person also need to satisfy the court that he or she cared for or contributed to the maintenance of the deceased person during his or her lifetime. Children of a deceased person’s spouse or domestic partner also need to prove that they were maintained wholly or partly or legally entitled to be maintained wholly or partly by the deceased immediately before his or her death.

If you are not one of these people, then you are not entitled to make an inheritance claim in South Australia. There are, however, other ways to challenge wills besides making an inheritance claim. If you are unsure if you are eligible or how best to proceed, you should contact us to discuss further.

If you are eligible to make a claim, you then need to show that you were left “without adequate provision” for your “proper maintenance, education or advancement in life”. This is the wording that is taken specifically from the legislation that deals with inheritance claims.

In order to determine the likelihood of success of your claim, it is important we look at a whole range of circumstances relating to you, the deceased and the deceased’s estate, and the other beneficiaries and potential claimants.

Your chances of success depend on your relationship with the deceased, whether there were any periods of estrangement or attempts to reconcile your relationship, the size of the estate, your financial position, your health and future needs, the living standard to which you are accustomed, whether you provided any care to the deceased or contributed to the deceased’s estate during their lifetime, and whether the deceased made any provision to you during your lifetime.

A court will then try to determine what the deceased should have left, acting wisely and fairly, taking into account all of those circumstances.

It is important to act promptly in relation to inheritance claims, so that all of the necessary information can be obtained to determine your likelihood of success, and to attempt to negotiate a settlement.

There are also very strict time limits to making a claim.

Get in touch with us

If you are considering making an inheritance claim or wish to find out more information, please contact our estate litigation lawyers on 8213 1000 or via our online chat. Your first appointment is free, and obligation free.

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