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September 10, 2020 By Kruger Law

Have you been left out of a Will?

This article is the first in our series answering common questions about Estate and Probate disputes.

Q: Can I challenge a Will if I have been left out of it, or named in it but treated unfairly?

A: Yes, but only if you’re a:

  • Spouse – including a defacto and in some circumstances, even a divorced spouse;
  • Child – including a step, adopted and even a “defacto step-child”; or
  • A dependant of the deceased.

Q: Do time periods apply?

A: Yes. Broadly, a challenger needs to take two steps to ensure their right to claim is preserved.

  • Step 1 – A challenger must give written notice to the executor of the intention to challenge, within six months of the deceased’s death.
  • Step 2 – A challenger must actually commence court proceedings within nine months of the deceased’s death.

Q: How do I get a copy of the Will?

A: Certain persons are entitled to a copy of the Will if they request it, including a spouse, child or dependant of the deceased.

Q: Is my claim strong or weak?

A: It depends on various factors.

The threshold question is the level of need of the challenger.

If a challenger can demonstrate financial need, how much of the estate they ought to receive involves considering:

  1. the size of the estate;
  2. the nature of the relationship between the challenger and the deceased; and
  3. other “competing” claims.

Q: Who pays for the costs of the challenge?

A: If a challenger is successful with their claim, the legal costs of pursuing it are usually paid by the estate. Orders regarding costs are always, however, at the discretion of the Court.

Filed Under: News Tagged With: Wills, Wills and Estates

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