What If I Am Not Named In The Will?
When someone is not named in a will, it does not mean that they cannot ultimately inherit from a deceased estate. There is a legal provision in each jurisdiction that allows unfairly excluded people to claim their rightful entitlement from a deceased estate. The contested wills team at Armstrong Legal has considerable experience helping claimants in such cases. This article explains what to do when you are not named in the will.
Finding Out You Are Not Named In the Will
An executor of an estate has a legal responsibility to inform beneficiaries of the terms of a will. They are not obliged to inform every person who is not named in a will. Therefore, a person may not know that they have been excluded from inheriting from a deceased estate. If a close family member dies and you do not hear from the executor within a short period, you should take action. There is a legal provision in each jurisdiction that allows certain people to obtain a copy of the will, even if they are not named in the will itself. For instance, in Queensland, the Succession Act 1981 states that anyone from the following list can access a copy of the will:
- Someone referenced or named in the current will;
- Someone referenced or named in a prior will;
- The marital spouse or de facto partner of the deceased;
- A guardian or parent of the deceased;
- A child of the deceased (including an adopted child);
- Someone with an enduring power of attorney over the deceased;
- Someone who is tasked with administering the deceased estate;
- Anyone who would be entitled to inherit under intestacy law;
- Someone who has guardianship of a minor child who is a beneficiary of the will or who would be entitled to inherit under intestacy law;
- Anyone with a legitimate claim against the deceased estate (e.g. a creditor); and
- A person who is eligible to make a Family Provision Application.
Why someone may Not be Named In the Will
A testator is able to draft their will to include and exclude people as they see fit. This testamentary freedom does have legal counterbalances, in that eligible people can make claims against a deceased estate if they are not named in the will, and they believe that this is unfair. A claimant who feels that they have been unfairly excluded can apply to the Supreme Court in their jurisdiction and seek adequate provision.
The definition of adequate provision varies from case to case, depending on a number of factors. The court will consider the claimant’s identity, financial position and general circumstances, weighed against any other claims against the estate, with regard to the size and nature of the estate.
Who Can Complain When They Are Not Named In A Will?
Because succession law is state-based, rather than federally based, each state and territory has its own eligibility requirements that dictate who can claim against a deceased estate. However, there are some common principles, in that the deceased’s spouse, de facto partner and minor children always have the right to lodge a claim. The other categories of eligibility vary, but as a general rule, close members of the deceased’s family are usually eligible, and dependents (those who substantially relied on the deceased financially) are also eligible in some jurisdictions.
In Jodell v Woods , the Supreme Court of New South Wales heard a claim from an estranged 74-year-old daughter who was not named in her mother’s will. The mother’s $2 million dollar estate was left to one daughter, while the other daughter was excluded altogether from inheriting from the estate. The relationship between the mother and her estranged daughter had been fraught, despite attempts from the daughter to heal the rift.
The daughter’s circumstances were modest, and she was seeking sufficient provision from the deceased estate to enable her to live comfortably in her retirement. The court found that though the daughter was obviously not named in the will because of the estrangement, this was not sufficient reason to exclude the claimant from receiving adequate provision for her financial needs. The court ordered that the claimant receive $425,000 from the estate.
A person who is not named in a will has a legal opportunity to question the fairness of the estate distribution, but only within strict timeframes. Each jurisdiction in Australia has a time limit for someone to contest a will. The period allowed ranges from three to 12 months. A claimant needs to check the relevant deadlines in their state or territory, and take note of whether the limitation period is counted from the date of death or the date when the court issued the Grant of Probate.
The contested wills team at Armstrong Legal specialises in helping those who are not named in a will to receive their fair entitlement. Contact or call the team on 1300 038 223 for advice on how to claim from a deceased estate.