He didn't leave me anything

Date: May 05, 2009
Document Type: Newsletter

When someone dies, the terms of their will can cause jealousy, distress or upset in a surprising number of cases. What can someone do if they think that they have not been treated fairly in a will?

The Succession Act allows a court to vary the provisions of a will if an "eligible person" has not been adequately provided for.

ligible persons include: -

  • A husband or wife
  • A de facto partner, including a same sex partner,
  • A former spouse or partner,
  • A child or grand-child,
  • Someone who has ever been dependant on the deceased,
  • In some circumstances, someone who has lived in the same household as the deceased.

Although former spouses and partners are on the list, if they have had a Family Law or De Facto property settlement following the end of the relationship it is virtually unknown for them to also be allowed a Succession Act claim-that would usually be a second bite of the cherry!

The Act lists the matters which a court may consider in determining a claim, most of which are commonsense. The major ones of these are:-

  • The nature and the duration of the relationship between the applicant and the deceased,
  • Any obligations and responsibilities owed by the deceased to the applicant and any other beneficiaries,
  • The size and nature of the deceased's estate,
  • The financial positions of the applicant and of other beneficiaries,
  • If the applicant has a spouse or partner, that person's financial position,
  • Whether anyone involved has a disability,
  • The applicant's age,
  • Any contributions, financial or non-financial, which the applicant has made to the deceased's assets or welfare,
  • Any provisions or assistance given by the deceased to the applicant, whether during their lifetime or in the will,
  • The applicant's character and conduct both before and after the death.
  • Anything else which the court sees as relevant.

As you can see there is a pretty broad brush approach open to the court in determining a claim. Without being too cynical about the relationship between the law and morals, it is probably fair to say that the court is looking at moral claims and fairness.

Courts accept that it is the deceased's wealth, and the deceased's wishes expressed in their will play a strong part in determining the outcome of any claim. The broad discretion given to a court does not mean that any claim with whatever justification will succeed.

Can I bequeath my heart?
Date: Dec 13, 2011
Capacity to make a will
Date: Jun 20, 2014
Caveats in Probate Proceedings
Date: Jul 24, 2014
Choosing your executor
Date: May 09, 2012
Coercion in making a will
Date: Sep 07, 2011
Creating a Living Will
Date: Jun 06, 2011
Family Provision Overview
Date: Jul 16, 2012
Fixing errors in Wills
Date: Mar 28, 2012
Gambling away inheritance?
Date: Jun 18, 2012
Informal and Stopgap Wills
Date: Nov 26, 2013
Life changes and wills
Date: Mar 12, 2013
Lost Wills
Date: Mar 21, 2014
Moral duty and family provision
Date: Oct 01, 2012
Obtaining Probate
Date: Feb 03, 2011
Organise Organ Donation
Date: Jun 04, 2010
Proper funeral planning
Date: Jan 31, 2013
Security for Costs
Date: Aug 08, 2010
Testamentary Capacity
Date: Apr 01, 2012
The Basics of Estate Planning
Date: Apr 01, 2011
The Curse of the Homemade Will
Date: Sep 18, 2014
The Problem With Internet Wills
Date: Jun 18, 2014
What are Powers of Attorney?
Date: Jun 16, 2014
What can a will be written on?
Date: Sep 07, 2011
What is a “Benjamin Order”?
Date: Oct 04, 2013
When should a will be changed?
Date: Feb 03, 2012
Who will look after your pets?
Date: Nov 15, 2011
Witnessing a will
Date: Sep 07, 2011
Back to Publication List