What if I have been left out of the Will?

Written by Terry Johansson | 3rd July 2013

If you have not received a share, or an adequate share, of your spouse/civil partner/unmarried partner’s Estate in their Will, you may be able to commence legal proceedings and make a claim against the estate.

Each State has its own laws, and generally  the laws of the State where the deceased lived and had their main assets will apply.

The claim you make when “contesting a Will” is generally called a “Family Provision claim”.


Generally, people are legally entitled to leave their assets to whomever they wish on their death, but each person has a moral obligation to provide for those people who are dependent on him / her.  The Family Provision laws enable people to contest/challenge a will if the deceased failed in this duty.

A Family Provision claim can only be made against the estate if:

a) The deceased died whilst domiciled in the State where the law applies;

b) The person making the claim does so within a certain period of time from the date of the granting of probate or letters of administration. This is usually between six (6) and nine (9) months.  As some States measure the time limit from the date of death, do not delay;

c)  The person is eligible to make a claim against the estate; and

d)  The person can prove that the deceased failed to make a reasonable financial provision for him / her in the Will.

Usually a person’s domicile is clear: it is the State where the deceased had their permanent home and where he / she intended to remain living on a permanent or indefinite basis.  If there are complex issues, a court may be required to decide any disputes as to the deceased’s domicile.

A claim against the Estate must be lodged within the time period specified by the law. This is very important and there may be serious consequences if this does not occur.

If you fail to commence your clam in time, you will need the ‘leave’ or permission of the court to proceed with a clam that was made out of time. If the court refuses, the claimant will have lost the chance to make a family provision claim.

To find out whether probate has been granted you can contact a solicitor or a probate searcher.

If you are trying to find out the whereabouts of a Will ask the deceased person’s solicitor, or ask for a Will search of the courts.  Click here for more information. Professional Will searchers may also be able to help.

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