Left out of a will? Make a claim

August 07, 2022 Paul Brennan
Left out of a will? Make a claim
Show Notes Transcript

The basics

Paul Brennan is the principal of Brennans Solicitors, a law firm located on the Sunshine Coast, Queensland, Australia, where he practices with his wife, Diane in the areas of business law, litigation, property and wills/estates.

Over the years, by working in various countries, he noticed how similar the law can be. He set out to explain the law in a simple and often humorous way.

He has written several books about law and lawyers.

Further details of his profile can be found on Linkedin.

Been left out of a will lately? 

Basically, there are three arguments to put to contest a will-
1.  The will was not properly drawn up. Although courts are becoming a little less formal, they will still throw out wills for this reason.

2. The deceased was out of his or her mind. If you are an ageing parent get your doctor to witness your will. A doctor’s opinion that you are sane is good evidence and may surprise your spouse at the time of making the will.

3. You are a spouse, child or dependant without proper maintenance and support. This is the least dramatic option. Dependant includes anyone the deceased was maintaining or supporting. But not an accountant, no matter how traumatic the death of their client may be. 

The court can give you what they think fit, taking into account your financial position, how much money the deceased left and who else is claiming. The older the child, the less likely the court will award something. A child over, say fifty, can claim a ‘buffer against misfortune’. The old buffer argument. 

You don’t need to be on the poverty line but the court recognises that your parents or spouse should still carry you a bit. The courts support people with impairments that prevent them from earning. To come under this category, bone idleness and an inability to get on with employers, ideally, should be described using medical jargon.

For spouses the court will take into account the effort that you put into building the deceased’s estate as well as your conduct, which is often helpfully outlined in the affidavits of the other relatives.

The good news for the challengers is that the legal costs of contesting a will, which can be substantial, are usually paid for from the deceased estate. This is, of course, the bad news if you should win. 

© Paul Brennan 2010-18. All rights Reserved.

Extract from "The Law is an Ass—make sure it doesn’t bite yours!