What if no provision is made in the Will for a child of the deceased or if it is much smaller than everyone else’s?

Written by Terry Johansson | 13th September 2013

If a child does not receive a gift from their parent’s Will, or the child feels that he/she has not been adequately provided for, he/she may be able to bring a claim against the estate under the law. This is called “contesting a Will”.

A person has the freedom to dispose of his/her property on death as he/she wishes via their Will.

However the law ensures that a person maintains their moral obligation to provide for those who are dependent on him/her.

The fact that a child may have received a gift under the Will does not make that child ineligible to make a Family Provision Claim.

A potential claim against the estate will only arise 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 three (3) and nine (9) months, depending on the State concerned.  Sometimes the limitation date runs from the date of death so do not delay and get advice as soon as you know that you may be wanting to make a claim;

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

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

In most cases, the issue of domicile will be quite straightforward. The general rule is that the deceased is considered to be domiciled in the State in which he/she had his permanent home and where he/she intended to remain living indefinitely. Where there is doubt as to the deceased’s domicile, a court will need to make a ruling on the issue.

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