We never legally separated but he has left me out of his will! Left out of a Will
You are able to make a claim on your husband’s Estate even if you are not living in the same country.
If you are living outside Australia and your husband lived in Australia, then you have the right to make an application for a family provision order. This is an order that you receive a benefit from your husband’s Estate. In New South Wales family provision applications and orders, are governed by the Succession Act (“the Act”).
The Act sets out the groups of people who are able to make a family provision claim and the time and circumstances in which a claim must be made.
Are you an ‘eligible person’ to make a family provision claim?
As the wife of the deceased person at the time of their death, you are an eligible person under the Act and are able to make a family provision claim.
Is there a time limit on making a family provision claim?
You need to make your family provision application to the Court no later than twelve months after the date of death of your husband. It is possible to make a claim outside this twelve- month period but you will need to show the Court, the reasons for the delay in making the claim and the Court will only allow the application to proceed, if they find that sufficient cause has been shown in the circumstances.
What do I need to show to be successful in a family provision claim?
The main thing that needs to be shown to the Court before they will make a family provision order, is that your husband did not make adequate provision for your proper maintenance, education or advancement in life.
The Court must consider a number of matters set out in the Act when determining whether to make a family provision order. These matters include:
– The relationship between you and your husband, including the nature and duration of that relationship;
– The nature and extent of any obligations or responsibilities owed by your husband to you;
– The nature and extent of your husband’s Estate and any liabilities of the Estate;
– Your financial resources (including earning capacity) and your current and future financial needs;
– If you are living with another partner, the financial circumstances of that person;
– Whether you have any physical, intellectual or mental disability;
– Your age at the time of making the application;
– Any contribution you made (financial or non-financial) to the acquisition, conservation and improvement of your husband’s Estate or to your husband’s welfare where you did not receive adequate consideration;
– Any statements made by your husband about his intentions in relation to his Estate;
– Whether you were being maintained by your husband, either wholly or partly, prior to his death;
– Whether any other person is liable to support you; and
– Your character and conduct before and after the death of your husband.
If you have been left out of a Will you need to speak Graeme Heckenberg at Sydney Wills Lawyers on making a family provision claim. Graeme is a subject matter expert in Wills and Estate Law. Sydney Wills Lawyers is a division of Heckenberg Lawyers and has been established for over 25 years. Their boutique practice prides themselves on open and honest communication with their client’s. Heckenberg Lawyers are located in Macquarie Street in the centre of Sydney close to all transport links.