Who Can Make A Claim Against A Will?

Who Can Make A Claim Against A Will?

by Jacqui Brauman

I’m going to talk about who can make claims against a will. Now, there are two ways a will can be challenged. The first is an outright provision claim where someone challenges the validity of the will and wants more from it than they received. The second way is challenging that the will is invalid and needs to be changed because it wasn’t written properly or something like that. So those are the two ways that a will can be challenged. Today I’m focusing on people challenging a will because they want further provision from it. Now who can do that and what’s the process?

In the past, Victoria had more generous laws around estate claims than other states. That’s why you may hear stories about people making huge claims on wills or getting large payouts. But this has all changed in the past few years. Now, only people who can prove that they were a close relative can make a claim on an estate. In general, you can make a claim for spousal maintenance if you are legally married, in a registered relationship (de facto), have had a child with your partner or have fostered or been entrusted with a child together. If you don’t fit into any of these categories, then no, you’re not eligible to make a claim. If you want more detail on this, we can go through the legislation together specifically but that’s generally where people sit.

So now, siblings and in-laws can’t make a claim. You can rest assured that those people aren’t trying to insert themselves into your will just so they can get something. Even if they’re eligible, it doesn’t mean they’re going to get anything from your estate. That’s something else we have to assess. We need to work out how much money they might get if they made a further provision claim. The further provision claim is not about punishing someone else who is in the will or changing the will. The person making the claim must prove that they should be provided for by showing that they were either left out or have not been sufficiently provided for. Just because they’re in an eligible category doesn’t automatically mean that they need further provision. So some of the things which are looked at are actually the will maker’s wishes.

There are a number of factors that we take into consideration when deciding whether to include someone in a will. Firstly, we must consider the nature of your relationship with the person. If you have an estranged relationship with them, it is unlikely that they will be included in your will. Secondly, we look at how long ago the estrangement occurred. If it has been many years since you last saw or spoke to that person, it is likely that they will not be included in your will.

The next thing to do is to work out what quantum or amount they could get if they made a further provision claim. A further provision claim is not about punishing someone else who is in the will. It’s not about changing the will. It’s about this specific person saying, “I was either left out or I haven’t been sufficiently provided for.” And so then they have to prove that they should be provided for. Just because they’re in an eligible category doesn’t automatically mean that they need further provision.

So this is part of the problem with this area, is that the person who can defend the claim has now passed away. So we ask for people as much as possible to give evidence in the form of a letter for their reasons of leaving someone out if they’re doing that. The nature of the relationship between you and your estranged friend is important; did they maintain an estrangement or were you estranged from them? Sometimes these things are also factors for us to consider.

For a person making a claim, their own financial situation is also relevant as is the financial situation of beneficiaries who have been provided for. So a will maker has to weigh up their obligations, and if they leave an adult child out because that adult child has been provided for, they’re doing well financially, they have a house, all the things–there’s no further obligation to look after an adult child. So adult children tend to think that they have some kind of entitlement. However, no, you are not entitled to have a house paid off by your parents. Quantum is assessed based on a whole lot of factors, and I’ve just rattled off a few of those which are relevant.

Another relevant factor is the future need of someone. So if a person was quite unhealthy or supporting disabled children of his or her own, then that might factor into a decision about whether to make a further provision in his or her will. But on the flip side, if someone is predicted to live only a short time, then that might counteract that argument because you don’t need as much when you’re not going to be around very long. Wills aren’t open slather anymore in Victoria. They’ve actually become quite tightened up! Able-bodied adult children aren’t doing so well out of claims anymore either.

Adult children, who are left out of a will and depend on the deceased for financial support, often do fairly well. Spouses who are left out of a will may have the right to be provided with a house and money by the estate. The argument then becomes one of whether someone is considered de facto or not; how they get across that threshold is an interesting question. And if it’s only a fairly new de facto relationship, how much obligation did the person have to maintain that person.

So we hope this article helps you in understanding the basics of challenging a will. Its important to get your will in writing and witnessed but afterwards, its important to make any amendments if you want. Our team will be happy to help you with that. Call us at 1300 043 103 or send an email to admin@tbalaw.com.au to book an appointment.