Things to consider when disputing a will

Date: May 24, 2011

If you feel you have been not been properly provided for or have been left out of a will after the death of a relative or partner, you may wish to speak to a lawyer to see whether you can make a claim under the Family Provisions Act (FPA).

The first thing your lawyer will help you to decide is whether or not you are eligible to make an FPA claim.

Not everyone can contest a will and an experienced lawyer with a background in estate planning is the best person to ascertain if it is worth pursuing a case. Generally, you are eligible if you are a spouse or de facto partner - including a same-sex partner - of the deceased person, a child or a former spouse.

Dependent persons - individuals partially or wholly dependent on the deceased, often grandchildren, foster children or other members of the household - may also qualify.

The strongest claims are usually brought about by surviving spouses and de facto partners, as well as children - particularly if they have a disability or are very young.

Once your eligibility has been assessed, your lawyer will be able to help you navigate the two-stage court process to change the will.

The first stage is to assess whether you have been left without sufficient provision for your maintenance, education or other advancement in life.

If the court rules that adequate provision has not been made for you, it will then determine what provision should be made for you from the deceased's estate.

This decision is a subjective task that is determined on a case-by-case basis by your circumstances at the time of the hearing, rather than the time the will was made, to determine the amount of the estate and the merits of any competing claims.

Likewise, if you are thinking about making your will and you intend to exclude an eligible person from receiving benefits from your estate, you should consult a wills and estates lawyer.

It is important to be aware that the FPA can override your wishes should you choose to leave an eligible individual out of your will - although a document drawn up under the guidance of an experienced lawyer may reduce the likelihood of a successful claim being made on your estate.

As personal circumstances mean that every case is different, a lawyer specialising in wills and estates can provide you with the best guidance for your unique situation and advise you on the likely outcome of your case.