Kayla Kristensen, Dispute Resolution Lawyer at Robertson Hyetts, answers the most common questions asked before contesting a Will.
Q. Who can challenge the distribution of an estate under a Will?
A. A claim for a share, or a larger share, out of an estate can be made if the deceased had a moral duty to provide for a claimant and they can show that the Will didn’t adequately provide for their proper maintenance and support. A claimant must be closely related to the deceased and generally includes a spouse or former spouse, a child or stepchild, a parent or a grandchild who was dependent on the deceased.
Q. If the deceased did not have a Will, is it possible to challenge the distribution of the estate?
A. Yes. If the deceased did not have a valid Will then Letters of Administration can be applied for by any person/s entitled to inherit the deceased’s assets. Once Letters of Administration have been granted and an administrator appointed, eligible persons can make a claim.
Q. Is there a time limit for contesting the distribution of an estate?
A. If a person wishes to make a claim on a deceased estate, they must make an application to the court within six months of the Grant of Probate or Letters of Administration.
Q. What factors are taken into account when deciding if a claimant has not been adequately provided for?
A. If a claim is made, the court will generally consider the following factors:
- The length and nature of the relationship;
- The size of the estate;
- The financial and/or health needs of the claimant and other beneficiaries;
- Whether the claimant contributed (financially or otherwise) to the deceased during their lifetime; and
- Any provisions made by the deceased during their lifetime.
If you believe that you have been wrongly left out of a Will or that you are entitled to a larger share of a deceased estate, you should seek legal advice as soon as possible. Please call our office on 5434 6666 (Bendigo) or 5472 1588 (Castlemaine).