When a loved one dies...

When a loved one dies...

When a loved one dies, there are a thousand questions running through everyone’s mind.

Did they have a Will? What funeral arrangements should be made? Who should we notify?

 

Over time, all of these questions may be clarified with the help of an Estates Lawyer, a Grant of Probate may be obtained and at the end of the day, hopefully everyone will receive their share of the Deceased’s Estate.

But what happens if you are left out of someone’s Will? We understand that, in this situation, many individuals feel hurt and betrayed.

You may have a right to make a claim for further provision out of an Estate, if adequate provision was not made for you.

In Western Australia, there are classes of people who are entitled to bring such a claim.

The following persons have standing to bring a claim:

  • a person who was married to, or living as the de facto partner of, the Deceased.
  • a person who was receiving or entitled to receive maintenance from the Deceased.
  • a child of the Deceased
  • a grandchild of the Deceased in limited circumstances
  • a stepchild of the Deceased in limited circumstances
  • a parent of the Deceased in limited circumstances

You cannot bring a claim unless you are someone identified above, and nothing can stop you from bringing a claim if you are in any of the above classes. However, you may be not necessarily be successful in your claim.

In determining such a claim, the Court will have regard, among other things, to:

  • The Applicant's financial position;
  • The size and nature of the Deceased's Estate;
  • The co-operation and support given by the Applicant in the conduct of the Deceased's business and affairs;
  • The encouragement of the Applicant by the Deceased to base the Applicant's lifestyle on the understanding that the Applicant would inherit certain property;
  • Any service rendered by the Applicant to the Deceased;
  • The fact that the Applicant has a dependent child;
  • The totality of the relationship between the Applicant and the Deceased; and        
  • The totality of the relationships between the Deceased and other persons who have legitimate claims upon the Estate of the Deceased.

Alternatively, you may be an Executor or a Beneficiary of an Estate which is being contested.

Either way, the law regarding contested estates has changed significantly in 2016.

Historically an adult child had been seen to be able to maintain and support themselves.

Accordingly, adult applicants had to establish some special need or some special claim to justify intervention by the court under the Act.

Up to the end of 2015, in Australia, there appeared to be a clear trend for Courts to be far more generous to adult able-bodied children and spouses in general.

There has now been a noticeable shift, with case law leaning towards its historical roots.

At Butlers we can assist you in assessing your claim and advise you as to the merits of your claim or any other claim.  Contact us for peace of mind.

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Sunday, 20 January 2019