I’ve been left out of the Will…. What do I do now?

You’re one of three children to your mother, Kathy and your father, Robert.  Robert passed away 5 years ago so it’s just been the 4 of you for a while now. Your two siblings have made your parents proud, one of your sisters is a nurse and the other one is an accountant at a big city firm and you’ve always been close to your parents in your own way. 

You really have no idea what your parents have by way of assets or what their plans were in the event of their death.  Before you even knew it, your mother passed away and you learn your two sisters are receiving the entire of her estate, leaving you with nothing.

In circumstances where a child has been left out of a parent’s will or given an insubstantial portion of the estate, that child may be entitled to make a claim for further provision under the estate.  The type of claim is called a Part IV claim and whether or not further provision is gifted to the person making the claim depends on whether the deceased owed a moral duty to provide further provision under the estate and the court will consider the matters including but not limited to:

  • The terms of the will;
  • The nature of the relationship between the deceased and the person making the will;
  • The size of the estate;
  • The financial resources including earning capacity and future needs of the person making the claim and the other beneficiaries under the will; and
  • Any physical, mental or intellectual disability of the person making the claim or other beneficiaries.

At Scanlan Carroll, we have extensive experience in Part IV Claims and we have represented both the Applicants making a claim and also the estate in defending a claim. This places us in the unique circumstance where we understand all of the perspectives for this type of legal claim.

If you have been left out of a will or you think what you’ve been given is not fair – it is imperative that you seek timely advice because there are time limits that apply to these claims.

If you would like further information as to your rights under a Will or you are the executor of an estate which has received a Part IV claim and seek some advice, please contact Brooke Jolly ([email protected]) on (03) 9853 0311.

 

This bulletin is provided for general information purposes only. Each person’s circumstances are different and the information contained in this bulletin should not be relied upon as a substitute for legal advice.

The information in this bulletin is current as at the date of publication