Am I more eligible to an estate than my half-brother or sister?

Published 08 Dec 2015

Author: David Cossalter

Marriages and divorces are common across Australia. In fact, according to 2013 numbers from the Australian Bureau of Statistics, close to 120,000 couples married and 48,000 divorces were granted.

These events can tie together or break apart families and some will be the key factor in family provision claims. For example, if your mother or father has died, are you more eligible to an estate than a half brother or sister from a previous marriage?

While in the context of the situation, you might think you are, the argument between a child from a former marriage and a child from a present marriage doesn't come down to the deceased's marital status.

Equal rights for all children

According to Australian federal law, all children of the deceased are considered equal, regardless of whether they were part of a previous or present marriage. This rule applies across the country and any child of someone who has died has the legal right to claim against that person's estate.

If you find yourself in a situation where there is a legal dispute over an estate between siblings or even half-siblings, the Court takes into account a number of other factors that you should be aware of. Of course, before this point, it is important to get in contact with an expert contesting wills lawyer who can analyse your potential claim in more detail.

Here are three elements a Court will consider in cases between siblings.

1) Needs of the child

Everyone has a different financial or lifestyle situation and this could play a critical role in an estate dispute between siblings. If one party has severe financial hardship or needs further provisions to maintain a certain lifestyle, the court will take this into account.

Of course, evidence will need to be provided to the Court to prove these needs.

2) Relationship with deceased

Another element is your relationship with the deceased. Perhaps you are a child from the present marriage, but haven't spoken or interacted with the deceased for many years. In this context, a sibling from a previous marriage with a close relationship could be looked on more favourably.

Again, this is something that a contesting wills lawyer can help you prove in court.

3) Balance needs and desires

Lastly, it is important to note that the Court will weigh the value of a claim against the needs and desires of other children and applicants. A great relationship with the deceased has to be balanced with other siblings contesting the will and their personal situations.

For more information about contesting a will, contact our expert team today.

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