Children Left out of a Will – What are their rights and who looks after their interests?

Published 01 Feb 2012

Children left out of a Will have the right to apply to the Court for a family provision order. A family provision order, is an order of the Court, that provision be made for the child from the Estate of their deceased parent. In essence, children left out of a Will can challenge the Will and, if successful, receive a distribution from the Estate.

In each of the States there are specific criteria that need to be met, in order to be a person eligible to make a family provision claim. In relation to children of the deceased all States recognise that children of the deceased are eligible persons to make such a claim.

For example, in New South Wales when a child of the deceased makes a family provision claim, the Court will deem the child an ‘eligible person’. The Court is then required to consider whether, the deceased parent made adequate provision for the proper maintenance, education or advancement in life of the child in their Will. If the Court is satisfied that the deceased parent did not make adequate provision for the child, then the Court will consider whether to make a family provision order.

When considering whether or not to make a family provision order, the Court is required to consider the following factors:

  1. Any family or other relationship between the child and the parent including the nature of the relationship.
  2. The nature and extent of any obligations or responsibilities owed by the parent to the child as well as the nature and extent of any obligations or responsibilities owed by the parent to any other beneficiaries under their Will;
  3. The nature and extent of the parents Estate;
  4. The financial resources, including earning capacity, and the present and future financial needs of the child;
  5. The financial circumstances of any person with whom the child is cohabiting;
  6. Any physical, intellectual or mental disability of the child;
  7. The age of the child at the time the family provision claim is being considered;
  8. Any contribution, financial or non-financial, made by the child to the acquisition, conservation and improvement of the parent’s Estate or any contribution to the welfare of their parent, or their parent’s family, for which adequate consideration was not received by the child;
  9. Any provision made for the child by the parent during their lifetime or from their Estate;
  10. Any evidence of the testamentary intentions of the parent, including statements made by the parent.
  11. Whether any other person is liable to support the child;
  12. The character and conduct of the child before and after the death of their parent;
  13. The conduct of any other person before and after the death of the parent;
  14. Any relevant Aboriginal or Torres Strait Islander customary law; and
  15. Any other matter the Court considers relevant.

Children left out of a Will have the right, in all States, to make an application to the Court for provision to be made for them out of the Will of the deceased parent. Although each State varies in the test applied in deciding to make a family provision order there is a main theme to the Courts decisions being that parents have a moral obligation to provide adequate provision for their children.

If you have been left out of your parent’s Will you need to speak to a legal specialist practicing in this area who can explain your rights and assist in looking after your interests.

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Contact GMP Contested Wills Lawyers to book a free first consultation. At the first consultation we will discuss with you in a professional friendly manner the details of your situation and advise you if and how you should proceed.

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