What to do if you’ve been left out of a Will (plus mistakes to avoid!)

Dealing with the death of a loved one can be an overwhelming, emotional and even an isolating experience. It throws you right into the deep end, without a lifejacket or a pool buoy to hold onto. So, if you’ve just found out you’ve been disinherited or unfairly left out of a Will, this can make the period after a death understandably more difficult.

Keep in mind that in certain instances, there are several ways to contest a Will. However, before we explain how, note that things can get preeee-tty complicated… so be sure to obtain legal advice before taking any action.

Next up – the tricky questions:

1. What’s the difference between challenging and contesting a Will?
2. How do you know if a Will is worth contesting?
3. What mistakes should you avoid along the way? 

Let’s get into the thick of it: 

Challenging vs contesting a Will 

Contesting a Will typically relates to launching a claim against the estate for adequate provisions that you believe you are entitled to. On the flip side, challenging a Will is disputing the actual validity of the Will.

What does it mean to be left out of a Will?

The legal term for being left out of a Will is to be disinherited. This refers to a person who has not been given the opportunity to inherit from a family member, or someone who they were dependent on.

If someone is left out of a Will, this means they will not inherit from the estate (if the estate is administered according to the legal Will). So, in this case, in order to inherit, the person would have to contest the Will in Court… which can be successful if the person can establish that the testator (ie. the Willmaker) had an obligation to supply provisions for them. 

What are the grounds for contesting a Will in Australia?

There are a handful. See below:

• It is alleged that the Will was incorrectly executed or was potentially tampered with.
• The Willmaker was lacking the required mental capacity when making or editing the Will. (For example, they may have suffered from Alzheimer’s disease, or another form of dementia while drafting the Will.
• The Willmaker was pressured to create the Will by other parties, or they were incapable of creating the respective Will in question.
• Insufficient provisions were made in the Will for a spouse, partner, children or other dependants.
• The Will was incorrectly created or informal (ie. there was a clear error or the Will did not meet all of the legal requirements).

Mistakes to avoid when contesting a Will in Australia

Not seeking legal advice

When deciding whether you’d like to contest a Will, priority number one is to seek legal advice. This is a non-negotiable (you heard it here first!).

Failing to negotiate with the executor

The executor represents the estate in all legal proceedings. They are required to try to settle any valid claims, in order to steer clear of lengthy delays and additional costs. In this instance, an experienced solicitor can advise you on what to discuss with the executor. If a reasonable settlement offer is made, they can advise whether to accept it, or whether things should be taken further (ie. to the Court). 

Not being aware of the ‘time limit’ window 

The location of where the Willmaker died will affect how much time one has to contest a Will, as it varies across each Australian state and territory. For example, in Tasmania, you only have a mere three months from the date of probate to file a claim in Court, while other states and territories allow six to twelve months from the date of the testator’s death, or from the date of probate.

This is another reason why legal advice is so imperative… as you may be working within a short time period, or living in another state (and therefore unfamiliar with the respective state laws).

Note: If you happen to miss the cut off date, you can draft a late application, but only with the Court’s permission. The criteria to lodge a late application varies across jurisdictions, but the Court will typically only allow this if:

• The claimant can justify the delay.
• The executor has not already distributed the deceased estate.
• The executor or existing beneficiaries do not object to the application being filed.

Further reading: Discover our guide on How to Contest a Will After Probate in Australia.

Not giving yourself enough time to feel your emotions

While it’s important to be aware of the time limits and laws in your respective state or territory, you also don’t want to rush the process. Losing someone you love is an intensely isolating and emotional experience, and it’s not uncommon for people to act out because they feel deeply hurt, angry or upset.

Allow yourself the time and space you need to process your many emotions. Contesting a Will can potentially lead to familial conflict and tension among loved ones, so again – be sure to seek legal advice and weigh up the pros and cons with a legal professional before making any big moves. 

Wrap up

Firstly, challenging or contesting a Will can be complicated. Between time limits that vary between Australian states and territories, extensive costs and future familial conflict – all of these things can take a toll. Secondly, be sure to obtain the relevant legal advice before taking any action. Lastly, remember to take good care of yourself. Whether this is by regularly talking to friends and family, enlisting the help of a healthcare professional or simply carving out ‘me’ time – it’s important to look after your mental and physical health during this emotional time (and beyond).

Further reading: Browse our Complete Guide to Grief Counselling and Bereavement Services in Australia (2022).

Disclaimer: The content of this blog is intended to provide a general guide to the subject matter. This blog should not be relied upon as legal, financial, accounting or tax advice.