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Are you eligible to file an inheritance dispute claim?

Once a testator is deceased, all that’s left to control where his or her assets end up is the will that was left behind.

In theory, this is a straightforward process, and the experts who helped the testator draft the will sort out all inheritance plans. However, because this often involves large sums of money or precious heirlooms, inheritance disputes may arise, requiring a contesting wills lawyer.

These complaints aren’t uncommon, and with the right help can typically be resolved. But before anyone decides they should have been included in a will, they’ll need to take a look to see if they are in fact eligible to lodge an inheritance dispute claim.

In Australia, there are five categories a person must fit into if they plan to file a complaint. The first, and often most obvious, is if the surviving party is a husband, wife, de-facto or same-sex partner of the testator when he or she died.

It may come as a surprise, though, that even former spouses and partners can lay claim to all or part of a will, so long as they have evidence that backs up their case.

Children and grandchildren – including those who joined the family by official adoption – also have every right to file a complaint. Grandchildren must be able to prove they were “wholly or partly dependent upon the deceased at any time”, according to federal law.

Defining ‘close personal relationships’

The aforementioned relationships to the deceased are rather straightforward, and can be proven in the court through documents, bloodwork and testimonies.

Where it gets hairy is when inheritances are disputed by persons who were living in a “close personal relationship” with the testator at the time of their death. Even if the person was not related to the deceased, whether through blood or marriage, they have the right to file a dispute.

However, the definition of “close personal relationship” is vague. Virtually any two adults who lived together when there was some form of mutual domestic support and care could be considered to be living in this relationship.

It’s these instances that have typically caused the most problems for families, and often require mediation and help from contesting wills lawyers.

Wills aren’t always the clear-cut documents they’re meant to be. However, there are several legal options families have when it comes to ensuring everyone receives the piece of inheritance they deserve.

© 2021 
Contesting Wills
 — Gerard Malouf & Partners

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