Left Out of A Will – Scenario

My parents made a mirrored will. My father has since passed and my mother is elderly. At the time of making his Will I was estranged to my father, hence all of the Estate once my mother passes goes to my siblings. I do not want to worry her about making changes but what should I do to ensure some inclusion?

In New South Wales eligible persons who believe they have been unfairly left out of a Will or have been ill treated in a Will have the ability to make a family provision claim against the Estate of the deceased.

In your situation as described this means that, when your mother passes, you will be able to make a claim on her Estate as a child of the deceased is an eligible person under the Succession Act (“the Act”). In the event that you wish for early resolution of the issue you need to seek legal advice from an expert Wills and Estates lawyer on your options to be included in your mother’s Will.

If you decide to wait until your mother passes, then you will have a period of twelve months from the date of her death to make a family provision claim. In determining whether you have not been given adequate provision for your proper maintenance, education or advancement in life in your mother’s Will the Court will look at a number of factors including:

  1. Your relationship with your mother including the nature of that relationship;
  2. The nature and extent of any obligations or responsibilities owed by your mother to you and to your siblings;
  3. The nature and extent of your mother’s Estate;
  4. The present and future financial resources, including earning capacity, of you and your siblings;
  5. If you are living with a partner then the financial circumstances of your partner;
  6. Any physical, intellectual disability suffered by you or your siblings;
  7. Your age;
  8. Any contribution you have made to the acquisition, conservation and improvement of your mother’s Estate or to the welfare of your mother for which adequate consideration was not received by you;
  9. Any provision your mother made for you during her lifetime;
  10. Any evidence of the testamentary intentions of your mother including statements she may have made to you regarding her Estate;
  11. Whether your mother was partly or wholly maintaining you before her death;
  12. Whether there is any other person liable to support you financially; and
  13. Your character and conduct before and after your mother’s death.

To understand your options in relation to your mother’s Will you need to seek urgent legal advice from an expert Wills and Estates lawyer.

At Heckenberg Lawyers we don’t take our clients’ confidence for granted: we work hard to earn it by providing an efficient, cost effective service which puts your interests first and doesn’t cut corners. We take pride in achieving repeat custom and winning clients by word of mouth recommendation.

If you need advice about a Will or an Estate matter please call 02 9221 2779 or email info@hecken.com.au to arrange an initial consultation with principal lawyer Graeme Heckenberg at our centrally located Sydney offices.

See our Will Dispute Lawyer & Contesting Wills page for more information on the Wills & Estates services we provide or contact us for advice specific to your situation.