Being left out of a Will is likely to be a very confronting experience, especially during a time of grief.
There are many reasons why a person may exclude someone who may be a likely beneficiary when making their Will. While a person can generally make their Will in any way they chose, there are laws designed to protect certain people who are considered to have not been adequately provided for by the deceased.
Left out of a Will: What does it mean?
When a person is left out of a Will, often they are described as being disinherited. The term disinherited usually applies to a person who has not been included in the Will of a person who is, for example, a spouse, child or dependant person.
Left out of a Will: What now?
It is important to understand that:
- You may be able to do something about being disinherited by making a Family Provision Application (FPA).
- Some people may be eligible to challenge a Will by way of FPA because the deceased did not provide for them at all or perhaps, where the deceased did not provide them with enough from the estate. These eligible claimants can include a spouse, children (as well as stepchildren) and dependants.
- There are important time limits that apply to FPAs in Queensland:
(a) You must give written notice to the executor within 6 months of the date of death stating their intention to make a FPA. Failure to do so may mean that the estate is legitimately distributed leaving nothing in the estate in a worst-case scenario.
(b) You must start the legal action within 9 months of the death of the deceased.
Although, it is still worth seeking legal advice if you are outside the time limit because in some cases, you may still be able to challenge the Will.
- Be aware that the law differs from state to state and there may be different time limits, different eligible classes of beneficiaries and requirements for a claimant to make or be successful in an FPA.
- Seek legal advice about being disinherited as early as possible to ensure you adhere to the time limits and to allow yourself time to fully understand your options and next steps.
To read more about Family Provision Applications, check out Challenging a will: Top 5 FAQs.
If you would like to discuss challenging a Will, please contact our Estates and Succession team.