Rights of Excluded Will Beneficiaries
Finding out that you’ve been excluded from a relative’s will can be a humiliating, frustrating, confusing and upsetting experience. You may, however, still have rights to make a claim.
The effect of a will
A will is in effect the testamentary intentions of the testator (the deceased). It is not “law” until a court grants probate in respect of it.
And in many cases where relatives have been excluded from a will, the courts have found the exclusion to be ineffective.
Power of the court to rectify wills
The court has the power to rectify a will if a clerical error is made, or if the will does not give effect to the testator’s intentions, according to section 31 of the Wills Act 1997 (VIC).
Moreover, Part IV of the Administration and Probate Act 1958 (VIC) deals specifically with issues regarding family provisions under a will.
Under this Part, the court has the power to order that provision be made out of the estate of a deceased person for the “proper maintenance and support of a person for whom the deceased had responsibility to make provision”.
So who does this include? Spouses and children, namely.
Timeline for contesting a will
If you wish to contest a will based on family provisions – i.e. that the will should have provided for you as a family beneficiary and failed to do so – then you generally have:
- Six months from the date of the granting of probate or administration, or
- Three months from the time you give notice to the estate.
What the court considers when making an order
The court considers a whole range of factors before making an order for family provision in a deceased person’s will.
These factors include:
- The nature of the relationship (including length of the relationship).
- Any obligations or responsibilities of the deceased person to the applicant and the beneficiaries of the estate.
- The size and nature of the estate.
- Any charges and liabilities that would impact the size of the estate.
- The financial resources and needs of the applicant and any other beneficiary (both at the time of the hearing and in the foreseeable future).
- Any physical, mental or intellectual disability of any applicant or any beneficiary.
- The age of the applicant.
- Any contribution by the applicant to building up the estate.
- Any contribution by the applicant to the welfare of the deceased person or their family.
- Any previous benefits the deceased might have given the applicant or any beneficiary.
- Whether the deceased maintained the applicant before his or her death.
- The extent and basis upon which the deceased assumed that responsibility.
- The liability of any person to maintain the applicant.
- The character and conduct of the applicant or any other person.
- Any other matter the court considers relevant.
As you can see, the list is not exhaustive and a range of factors and evidence may be considered before the court makes a determination under the family provisions in respect of a deceased person’s estate.
Case study: Hyatt & Anor v Covalea
In the case of Hyatt & Anor v Covalea [2011] VSC 334 (8 August 2011), the Victorian Supreme Court was asked to make an order relating to the family provision of two sisters under their father’s will.
The daughters had a strained relationship with their father and there was no provision for them in their father’s will.
The court considered the moral obligation giving rise to a responsibility under section 91(4) of the Administration and Probate Act 1958 (Vic) to make provision for the adult daughters.
They also considered what amount would constitute adequate provision for their proper maintenance and support.
The deceased’s estate consisted mainly of two properties. One was in Fawkner and the other was in Tooborac, Victoria.
In 1991, the testator made a will, leaving his estate to his wife and subsequently his grandchildren.
In 2005, he made a new will, leaving the whole of his estate to the executor. His 2005 will included a statement explaining the exclusion of his daughters from any benefit under that will as follows:
“They have never reciprocated any attempts by me to develop a relationship between us leaving the necessary caring work to my executor since I have been frail. In addition, my children have not made any attempt for me to see my grandchildren. Although my relationship with Christine is closer having regard to her overseas domicile, I am informed by her that she is quite comfortable financially and does not require or want any provision made for her.”
After considering an extensive amount of evidence regarding the relationship between the deceased and his daughters during his lifetime, the Supreme Court concluded that provision should be made for the daughters in the will.
In making the order, the court referred to Coates v National Trustee Executors and Agency Co Ltd [1956] HCA 23 per Dixon CJ where he stated that children of the deceased are generally considered the “natural objects of testamentary bounty”.
On the question of “adequate provision”, the court considered several judgements as well as the wording of the legislation.
It determined that both daughters had real present and future needs. As one of the daughters appeared to have a stronger connection with her father, she was awarded slightly more in the estate settlement, while costs of the proceedings were borne by the estate.
If you need an experienced family lawyer in order to challenge a will, contact us. One of our experts can discuss your rights regarding family provisions under a deceased relative’s will.