Top 5 things to know about Wills & Families – including what to do when you've been left out or treated unfairly – Article 1

1 – Wills aren't set in stone

It is easy to assume that when a family member passes away, that their Will is set in stone and their last wishes are – well – just that.  Wrong!

If you have been unfairly left out – or unfairly provided for in a Will – then there is a way to right that wrong and undo those last wishes.

2 – What is a Family Provision Claim?

A Family provision claim is where you make an application to the Court to be awarded a portion of the deceased person's estate or, if you are already included, a larger share.

3 – Are there any rules about Family Provision Claims I need to know?

There are some key requirements you need to meet to make a Family Provision Claim. You must:

• Be an ‘eligible person' in the eyes of the Court;
• Have been left out of a will or feel you did not receive your due entitlements in a will; and
• Make your claim within 12 months of the date of death of deceased.

4 – Ok – How do I then know if I'm an ‘eligible person'?

Easy! In NSW an eligible person includes:

1. A wife or husband of the deceased;
2. A de facto partner of the deceased;
3. A former wife or husband of the deceased;
4. A child of the deceased (including adopted and step-children)
5. A dependant (wholly or partly) of the deceased;
6. A grandchild of the deceased;
7. A person who was a member of the deceased's household at any time; and
8. A person with whom the deceased was living in a close personal relationship as at the date of death.

It is important to note that where an eligible person is under any legal incapacity, such as a child or someone with a mental illness, an application can be made by a tutor.

5 – How do I find out more?

If you are an eligible person or if you are unsure if you are an eligible person and want to make a family provision claim, it is important that you obtain legal advice before making such a claim. Carroll & O'Dea has a team of Wills and Estates experts who will be able to help you with any questions you may have in relation to making a family provision claim.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.