I was left out of the will - what now?

Published 10 May 2017

Being left out of a will, especially that of someone you cared deeply for, can be a hurtful addition to the pain of losing a loved one. Fortunately, there have been a number of cases in NSW that favoured plaintiffs seeking inclusion in the division of property and estate. If you meet the following conditions, the next step would be to contact a family law professional who can give you a thorough assessment of your individual case.

Conditions to meet

To dispute a will, you must be the deceased's current (at time of death) spouse or de facto partner, ex-spouse / partner, child or grandchild. In certain circumstances, a person living with (or otherwise dependent on) the departed may also file a claim. In most scenarios, the dispute must be lodged within 12 months of the person's death, or it will not be considered by the court. Beyond these fairly straightforward rules, there are other, trickier hoops to jump through if you are to prove that you deserve provisions from the deceased's estate. The court will primarily consider these four factors when making a decision:

1) Your financial situation.

2) The nature of your relationship with the deceased.

3) The nature of the relationship between the deceased and other people with claims on the estate.

4) The nature of the estate and property of the deceased. 

In order to be considered in a will dispute, the court will have to determine that the departed owed you provisions for your maintenance, education and advancement in life. The most important factor here, in many cases, is the nature of your relationship with the deceased, particularly if the two of you were estranged.

The court will make their decision based, in part, on what or who instigated the estrangement, how long it lasted and if there were any attempts at reconciliation. Estrangement cases can easily swing in both directions depending on your situation, but a lawyer will be able to give you a better idea of how to proceed.

How to proceed

After evaluating your eligibility and chatting with your lawyer, it is worth looking into other reasons for which you can contest a will in NSW. If you believe you were left out of the will because the deceased was of unsound mind, or that they were coerced into writing the will a certain way, you may have evidence to further support your case. Regardless of your specific situation, contacting a Parramatta family lawyer will ensure that you receive the proper guidance and achieve the best outcome in your case.

Please call us on 02 8833 2000 to speak with a lawyer

I would just like to say thank you to Anthony who assisted my son in his matter. He is a first home buyer and was pressured into signing a contract prior to obtaining legal advice. The contract was certainly was not the normal straight forward type. To be able to obtain the help and assistance he did from Anthony and rescind the offer the next day, was wonderful. We were able to have a stress free Christmas. I am unable to thank him enough for this. My son and our family will be contacting Anthony when we find the next property.
Kim of Sydney

Parramatta Office:

Level 5/146 Marsden Street
Parramatta NSW 2124

PO Box 945
Parramatta NSW 2124

Phone: 02 8833 2000
Fax: 02 9687 3697

mail@maloufsolicitors.com.au