Steps to take if you’ve been left out of a Will

Emotional and legal impact of exclusion

It is a difficult time for all involved when a loved one passes away. This period of grief can be compounded if a person unexpectedly discovers that they have been excluded from the Will. Not having proper estate planning and advice around your potential beneficiaries and their ability to make a claim on your estate can create serious legal consequences for your estate when you pass away. This is second only to the emotional distress and family disharmony that can be caused if it is not handled sensitively.

Reviewing the Will and reasons for exclusion

Sometimes a Will maker will put reasons in their Will explaining why they have chosen to exclude a beneficiary or not to make as much provision for them as they have other beneficiaries. Often, there will be no explanation, or the explanation will be contained in other documents that sit behind the Will (such as a Statutory Declaration). These types of documents are private documents and may not come to light unless a claim is made against an estate.

There are many reasons why a Will maker may choose to exclude a beneficiary from their Will, such as making significant provision for the beneficiary during life, or because of a prolonged period of estrangement from the beneficiary. Often, the reasons are emotionally charged and may or may not have an impact on a beneficiary’s ability to make a successful claim for provision against the estate.

Understanding eligibility to contest the Will

The most common type of challenge against the Will of a deceased person is pursuant to the Family Provision Act (WA) 1972 (‘the Act’). Certain classes of eligible beneficiaries are entitled to make a claim against an estate pursuant to Act, most commonly including spouses (including de facto spouses) and children. It is not possible to ‘contract out’ of the Act or prevent an eligible person from making a claim pursuant to the Act. However, that does not mean that every person who makes a claim against an estate pursuant to the Act will be successful – the Supreme Court takes into account a raft of considerations in deciding a claim, such as the size of the estate, and most, importantly, the need of the claimant for provision from the estate, weighed against the need of the other beneficiaries.

Important deadlines for filing a claim

When a person passes away leaving a Will, the Executor named in the Will is required to apply to the Supreme Court for a grant of probate. The grant of probate allows the Executor to deal with the deceased person’s assets and distribute the estate pursuant to the terms of the Will. Any claim pursuant to the Act must be commenced within 6 months of the grant of probate being granted. The Court may grant an extension to this time limit, but only if there is a good reason why the claim wasn’t brought within the 6 month time period, and there are no guarantees that the Court will grant an extension.

Importance of consulting a lawyer

Just because you are an eligible claimant of an estate does not necessarily mean that you would be successful in making a claim. On the flip side, many potential claimants do not realise they have a potentially successful claim. The Court takes many factors into account when deciding a claim pursuant to the Act, and every claim and estate is different. It is imperative that a claimant seeks advice around if they are an eligible claimant and what the likelihood of success would be in making a claim for provision or further provision from an estate.

Steps to formally contest the Will

A claim pursuant to the Act is made in the Supreme Court of Western Australia. It is made by filing an Originating Summons setting out the provision a claimant is seeking from the estate, supported by an affidavit that must set out:

1. The claimant’s standing to bring a claim (i.e. their relationship to the deceased as a spouse, child etc);
2. Why the deceased has a duty to make provision for the claimant and why any provision that has been made (if any) is not adequate by reference to the value of the estate;
3. The claimants need for maintenance, support, education and advancement in life;
4. The assets and liabilities of the claimant (and whether it is shared with a spouse or domestic partner); and
5. The income and expenditure of the claimant (and whether it is shared with a spouse or domestic partner).

After these documents are filed, the Court will list the matter for a Case Management Conference, which is a hearing to progress the matter to a mediation.

Mediation and settlement: Exploring resolutions

The Court recognises that these types of claims should be resolved as soon as possible. This is why they are sent to mediation at the first opportunity. Most of these matters resolve at mediation. At mediation, the parties can craft a resolution that best works for all parties. Such resolutions may involve the payment of a lump sum, the transfer of specific estate assets or a combination of both. If the matter proceeds to a trial, the parties are bound by the decision made by a Judge.
Parties can also explore reaching a resolution through informal negotiations at any time before the matter goes to trial.

What to expect if the case goes to court

If the matter doesn’t resolve at mediation or through informal negotiations, the matter proceeds to a trial before a Judge. Prior to trial, the claimant is required to file further evidence to support their claim (and the other parties will likely file evidence to defend against the claim). This will include affidavit evidence, and may also include expert evidence from medical professionals, actuaries and other professionals. Trials are very expensive, and generally will not occur until years after the claim has originally been commenced.

Act promptly and seek guidance

If you have been excluded from a Will, believe the Will maker had an obligation to provide for you and have genuine need for provision from the estate, you should seek advice about your potential claim as soon as possible. An experienced estate lawyer can advise you about the strength of your claim and the best strategy to resolve your claim at the earliest opportunity.