The death of a relative or an intimate is a difficult time for us all. We mourn their loss and grieve for the times that might have been. Then, the Will is read and no one contacts you to discuss your inheritance. You believed your loved one would have made provision for you in their Will and you are shocked to learn that this has not happened. What do you do?
We recommend you consult LAC Lawyers to discuss whether you are legally entitled to make a claim against the deceased’s estate. Talking with us will enable you to clarify whether you have a legal claim for family maintenance provision. We will discuss whether the deceased, or testator as they are referred to legally, had a moral duty to ensure your proper maintenance and support under their Will.
If we advise in conference that you do not have a claim, you will have peace of mind that it was not your loved one’s intention to deny you a benefit from their estate but perhaps that the law required them to financially provide for others in their life. When meeting with LAC Lawyers among other matters, we will address the following issues:
- your relationship with the testator was intermittent or inconsistent and/or you had been distant for a time before the testator’s death;
- the Will discusses your relationship with the testator but specifically excludes you and states the testator’s reasons why – is this valid;
- another member of your family or of the testator’s intimates received more than you believe they were entitled – how this is assessed and what can you do;
- you believe the testator was pressured by a beneficiary to provide more to that beneficiary than entitled resulting in you not obtaining a benefit under the Will – what the courts think about influencing a testator’s last wishes.
If you have a family maintenance provision claim under the Probate and Administration Act 1958 (Vic), we can help you work toward negotiating a fair outcome with the executors of the estate and if necessary, commence a formal claim for family provision.
So, who must be considered for benefit from an estate when a testator makes their Will? The list of people to be considered comes from historical views about who must be taken care of when a person dies, placing the family as the central unit in civil society. Given recent developments in family law, regarding de facto and same sex relationships, we know the legal concept of ‘the family’ is constantly changing and adapting to meet modern experiences. A list of persons to whom a testator owes a moral duty includes:
- married, de facto and same sex spouses
- siblings (particularly those living with an impairment or incapacity preventing them from deriving an income);
- biological, step and foster children;
- grandchildren;
- housekeepers;
- long term carers; and,
- friends.
This list is not exhaustive and may be extended, depending on the circumstances of your relationship with the testator and the nature and size of the testator’s estate.
We encourage you to contact LAC Lawyers for a one hour conference to learn your entitlements and to experience our compassionate approach to addressing your sensitive legal needs.