KEY TAKE OUTS:
- If you have been left out of a Will, you must have a valid claim to contest the Will.
- When contesting the Will, the Court will consider your current and future financial needs along with the needs of the other beneficiaries.
- You can also make a claim based upon a promise you relied on.
What does it mean to be disinherited in a will?
A person making a Will, (formally known as a “testator”) is able to add and remove people (formally known as “beneficiaries”) from their will as they please. The removal of a beneficiary from a Will they were previously included in causes that person to become disinherited. Being disinherited deprives that person of the right to receive an inheritance from the testator’s estate. However, becoming disinherited does not necessarily mean that the person is unable to receive any provision from the estate. There are several ways a disinherited person is still able to receive a benefit under the Will.
Why have I been disinherited?
A testator may disinherit a person from their Will for several reasons. Some of the most common reasons are an ongoing conflict in the relationship or because there is little to no contact between the testator and the person. Due to these reasons, a testator, often a parent of an adult child, does not wish to provide a benefit to this person.
A testator may also remove a particulars beneficiary from their will, as having the person inherit from the estate may financially disadvantage other beneficiaries of the will. The testator may feel that the beneficiary they are removing, is more well-off than their other beneficiaries or they may feel that they have already provided substantially to this beneficiary during their lifetime and to provide further benefit would create disharmony between the beneficiaries.
I’ve been disinherited from a will. What can I do?
Being disinherited from a Will does not necessarily mean you cannot receive provision from the estate. The Succession Act 2006 allows for certain people to make a legal claim, namely a Family Provision Claim, if they do not believe they have been left adequate provision in the Will If the person has been disinherited then it is easier to prove inadequacy of provision than if a person has been left some provision, as adequacy will depend on the amount of the provision and the size of the estate.
Adequacy is determined on the basis of the claimant’s needs, having regard for their personal and financial circumstances at the time of the claim. The Court will also consider the impact that providing for the disinherited beneficiary will have on the other beneficiaries of the Will and any relevant competing needs.
The Act provides that the following people may make a claim for further provision from an estate: a spouse, a de facto spouse, a child, a former spouse, a person who at any particular time was a member of the testator’s household and dependent on the testator (common example if a step child), a grandchild who was dependent on the testator at any time and a person with whom the testator had a close personal relationship with as defined in the Act, as two people who are living together and providing each other with domestic support and personal care.
If you believe you have been disinherited from a Will, a Family Provision Application will need to be made to the Supreme Court of NSW or the relevant court of your State or Territory.
What if I am not an eligible person under the Succession Act?
Another option available to a disinherited person, (including a person who is not an eligible person under the Succession Act) is a claim known as promissory estoppel. A claim of this nature can be made when and if you were promised a gift or another sort of inheritance by the deceased and you did not receive this gift, in the Will.
For this type of claim to succeed, it must be shown that you have suffered some sort of loss because you relied on the promise of the deceased.
Because of the nature of the claim, essentially a “he said, she said” situation, it can be extremely difficult to prove loss. The obvious barrier the Court has is that it can only hear one side of the recalled event in which the promise was made as the testator has passed away. It would support the claim, if there were witnesses who can corroborate the event, although this does not guarantee a successful claim.
To make a successful claim of promissory estoppel, the claimant must establish:
- The claimant was promised a gift by the testator in their lifetime;
- There was a reliance by the claimant on that promise;
- Due to the reliance of the promise, the claimant has suffered detriment; and
- Considering all factors, it would be unconscionable for the estate not to be bound by the promise.
If the claim is successful, the Court can order that the gift became the claimant’s property the moment the testator promised it them. It therefore cannot form a part of the deceased estate.
What should I do now?
If you have had a relative pass away and you have discovered that you have been left out of the Will and want to know what you need to do next, the Wills and Estates Team at Coutts Lawyers and Conveyancers are more than happy to assist you. Please contact our office on 1300 268 887 or alternatively you can make a booking online to see a solicitor for an initial consultation.
ABOUT ALEXANDER CUMERLATO:
Alexander joined the Coutts team in May 2022 as a Lawyer working in our Wills & Estates, Personal Injury & Employment Law teams, working between our Narellan and Campbelltown offices.
Alex holds a Bachelor of Arts/Bachelor of Laws from Western Sydney University, a Graduate Diploma of Legal Practice; and has been admitted to the Supreme Court of NSW.
For further information please don’t hesitate to contact:
Alexander Cumerlato
Lawyer
info@couttslegal.com.au
1300 268 887
Contact Coutts Lawyers & Conveyancers today.
This blog is merely general and non-specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.
