These are all valid questions and, in a perfect world, they would be resolved before anyone we care about falls off their perch. But it’s a morbid subject, meaning that most of us don’t like thinking about it let alone raising it for discussion – and by the time we do have the answers it’s too late to ask why.

So what can you do if you find yourself in a situation where your expectations have not been met? What are your options if your inheritance is smaller than expected or, worse still, there is no mention of yours truly in the Will?

The good news? You do have options. The bad news? These vary from state to state across Australia, so your options invariably depend on the state or territory where your family member lived when they died.

The Situation

Let’s say your father (we’ll call him John) lived in South Australia and passed away recently. All of a sudden, you become aware that you been left out of his Will, or the inheritance that he left you is significantly less than what you expected.

Effectively you have three choices:

1. Try to have the Will declared invalid;
2. Try to convince all interested parties to enter into a Deed of Family Arrangement; or
3. Make a claim for provision under the Inheritance (Family Provision) Act 1972 (SA).

Having A Will Declared Invalid

This is the avenue to pursue if you have serious concerns about the validity of a Will.

For example, if you have concerns:

• about John’s mental capacity at the time of signing his Will (this is known as lack of testamentary capacity);
• that John may have been forced or coerced into signing the Will;
• that there is a more recent Will other than the one presented; or
• about the Will being fraudulent then this is the option you would take.

In these situations, the only way to contest the Will is to ask a court determine its validity.

If you have doubts about the validity of a Will it is critical to flag your concerns as early as possible, as time is of the essence.

To have a court determine the validity of John’s Will, your first port of call is to contact the solicitors for the executor and advise them of your position, let them know that you think the Will may be invalid and the reasons why. If it seems a bit scary, you can get a lawyer to do it for you.

Your next step is to lodge a caveat on the estate. What this does is ensure that you are notified before probate is granted, meaning that you have the opportunity to raise your concerns regarding the validity of John’s Will before his estate is distributed.

Once your claim has been considered, the court will make a determination regarding the validity of John’s Will.

If John’s Will is deemed to be invalid, the most recent Will that he created prior to the invalid Will comes into effect. If John has not made a previous Will then his estate will be considered intestate and his assets will be distributed in accordance with the laws of intestacy.

Entering Into A Deed Of Family Arrangement 

What about a situation where the Will is valid, but circumstances have changed so much since it was made that you believe that you should be entitled to a bigger slice of the estate?

Maybe you deserve a bigger slice of the action

Suppose that John drafted his Will 10 years ago when you were lucky to see each other once a week. However, as the years pass and John’s health deteriorates he becomes reliant on you to help him with his day-to-day living.

John’s Will does not take into consideration this significant change in circumstances but how do you go about addressing something like this?

The best option is to enter into a Deed of Family Arrangement. This is an agreement to change the terms of a deceased person’s Will. It is not exactly straight forward, however, as it requires all interested parties to come to an agreement. This means the executors, the beneficiaries and even the creditors. During a period of high stress and grief, this can be a monumental task.

If you are lucky to have a family who get-along well and can have an open dialogue where everyone agrees to the change, the Deed itself will act as an amendment to the Will.

If an agreement cannot be reached then this fails to be a viable option.

Having a family meeting

A few things to be aware of if you are considering entering into a Deed of Family Arrangement:

• The Deed does not prevent further claims being made on the estate because it does not bind those who are not a party to the agreement
• Since the Deed changes the way assets pass to beneficiaries, there is a risk that you could be hit with stamp duty, capital gains tax or other tax penalties.

Making An Inheritance Claim Under The Inheritance (Family Provision) Act 1972 (SA) For Inadequate Provision

Under the freedom of testation principle, a person is free to give their estate to anyone they wish.

In some situations, the law recognises that this can be unfair, especially if you are a dependent and suffer hardship as a result of a parent’s eccentric desire to leave all of their money or property, say, to a pet.

If you decide to pursue this avenue, you must make your claim within 6 months of the grant of probate or letters of administration.

Make a claim within 6 months

In our scenario, you must also be able to prove that John had some kind of connection with the state. It will usually be sufficient to prove that he lived or owned a house in a particular state. Where you physically live has no bearing on your ability to make a claim. The important factor in our example is that John lived in South Australia and had assets there.

To make a successful claim there are several hurdles to overcome:

• The first hurdle is to prove that you are eligible to make a claim.

You must have a specified type of relationship. As John was your father in our scenario, this will satisfy the first requirement. To make a claim you need to prove that you are either the spouse, divorced spouse, domestic partner, former domestic partner, child, step-child, grandchild, parent or sibling of the deceased person.

• The second hurdle is a favourable assessment by a court.

In assessing your claim the court will consider, among other things, the nature of your relationship with John prior to his death. This includes the extent to which John financially or otherwise supported you or the extent to which you cared for, or contributed to, his maintenance during his lifetime.

The court will want to know, for example, the details and extent that John relied on you for assistance with his day-to-day life.

• The third hurdle is your age, health and financial status.

The court looks at your age, health and financial status as well as the dynamics of your relationship with John prior to his death. All this information is weighed before the court decides whether, in all the circumstances, John failed to adequately provide for your proper maintenance, education or advancement in life in his Will.

The court takes a number of factors into consideration

If the court believes that you have been inadequately provided for, then an order of the court, as with the Deed of Family Arrangement, will act as an addendum to the Will.

The Wrap-Up

In a nutshell, as far as the law in South Australia goes, these are your options if someone leaves you out of their Will.

Obviously, the path you choose to pursue will depend on your individual circumstances but the important thing to remember is that you do have options.

*This article is based on South Australian legislation.

Have you been left out in the cold when a family member didn’t include you in their Will? Let us know your experiences in the comments below!

Take two examples that St Johns Legal Centre has dealt with recently.

A young woman, Jan, staying in a hostel, is harassed over a period of weeks by a man who is steadily becoming more insistent. For a while he’s been making sexual advances and now he’s pressuring her to let him into her room. Unbeknownst to the man, Jan was sexually abused as a teenager and finds his approaches terrifying. She’s also suffering from an undiagnosed bipolar disorder. One morning, in the hostel dining room, the man makes another sexual advance and, in front of appalled onlookers, Jan cracks and smashes a piece of crockery in his chest.

Here’s another one. Max, living in a small town, befriends a young woman who has never used drugs and has just recently moved to the town. He introduces her to his good friend, Anthony, who uses heroin and when the young woman is found dead from an overdose on Anthony’s lawn, Max is racked with remorse. He blames himself for introducing the two, attends Anthony’s house to talk about what has happened and ends up seriously assaulting him.

In both of these cases, the offenders were charged and convicted. It is not possible, or desirable, to argue that their crimes were not very serious and warranted the proper criminal sanctions. But both offenders served the sentences meted out to them and, in Max’s case, a significant amount of jail time. In both cases, the offenders were truly remorseful and had done a lot of work to ensure that the offences did not recur.

As a result of the offence, Jan received a diagnosis of her bipolar disorder. She commenced on-going psychological and psychiatric treatment and started taking mood stablising medication. Her psychiatrist considered that it was “virtually inconceivable” that she could commit a similar offence in her present, treated, state.

Max completed a 56 hour anger management program upon his release, as well as an 18 month program designed to prevent reoffending and addiction relapse. He voluntarily saw a psychologist for six months and entered into, and maintained, a methadone program. In other words, Max and Jan took responsibility for their role in the offences.

Both of the victims received pay outs under the NSW Victims Support Scheme which makes a payment to victims in recognition of their injuries and provides them with financial support.  As part of the Scheme these payments are recovered, wherever possible, from the offenders. The Commissioner of Victims Rights makes a ‘provisional order for restitution’, requiring the offender to repay the amount awarded to the victim under the Victim Support Scheme, but first offering the offender the opportunity to object to the repayment, or to object to repaying the full amount. If no objection is received, the Commissioner generally confirms the provisional order.

Jan and Max received provisional orders to pay hefty amounts of restitution shortly after completing their sentences – $17, 000 in the first case and $10, 000 in the second.

Payment of a restitution order by an offender does not prevent the victim from also taking civil action and, in that event, damages against the offender are assessed without regard to the restitution already paid.

In these two instances, St Johns Legal Centre was able to get the amount of the restitution orders substantially reduced to $1, 500 and $2000 respectively. It is not specifically stated in the Commissioner’s reasons, but it is likely that the work each of the offenders had done on themselves to ensure the conduct would not reoccur played a significant part in persuading the Tribunal to reduce the restitution amounts.

Still, it is fortunate that the offenders were able to access free legal assistance. Objecting to the orders effectively would challenge most ordinary educated people, and was simply beyond the capacity of our clients. In each case, we gathered thick piles of financial and other documents, requested reports from psychologists and doctors and wrote detailed submissions. These were then collated and attached to affidavits and statutory declarations and each document and annexure required certification by a solicitor or Justice of the Peace. It was a process which in itself required significant commitment from the clients, both of whom were required to attend our centre in person on three separate occasions.

It is worrying, then, that free legal assistance for offenders like Jan and Max is so difficult to obtain.

Legal aid is not available for restitution orders, and the prospects of obtaining free legal assistance from elsewhere in the legal assistance sector are not good. Already chronically underfunded, the Federal Government plans to reduce funding to the legal assistance sector by about 30% in 2017-2018. Funding cuts to some community legal centres have already kicked in. Yet, hefty restitution orders like those made against Jan and Max can derail a life. This is especially so when the person subject to the orders is already impoverished and teetering due to mental illness, or reeling from a stint in prison.

In all the circumstances, it’s getting harder and harder to tell the victim and the offender apart.

* Names and circumstances have been changed to protect the identity of the persons involved.