What can I do if my oldest sibling was given everything in a will?

Published 09 Apr 2015

There is no doubt that losing a parent is tough on any child, regardless of their age. Often they are the people that have brought you up and provided you with the necessities of life.

However, if they were born outside Australia, you could find an unsettling surprise in their will. In the laws and traditions of other countries, it’s commonplace to give all of your estate to your oldest child. As they were the first born, they were seen as the heir to the family fortunes.

While this situation works when there is only one child involved, this policy can be upsetting to other siblings who are entitled to nothing after their parent’s death.

What can you do in this situation?

If you are unable to successfully negotiate with your older sibling, it is time to talk to a contesting wills lawyer. It is important to note that under the laws of Australia, the order of children doesn’t matter when it comes to challenging the contents of a will.

Regardless of the state or territory, a child of the deceased is able to make a claim on the estate with or without the permission of the oldest child.

What will the Court take into account?

As with any contesting wills case, the Court will take into account many factors when deciding whether other siblings will get a percentage of the estate. As a result of Australia’s democratic legal framework, people are able to make independent choices on who gets what in a will. This means that you’ll need to prove the reasons behind why you are making a claim.

  • Financial needs

If not receiving anything in the will leaves you in a fragile financial position, then this is something that can enhance your case. As well as this, if your parents were supporting your finances before their death, you may be entitled to some of their estate.

  • The relationship 

Your relationship with your parents will also be a key element of any contested will. A sibling who visited and helped their parents will usually win over someone who hadn’t seen them for over 20 years, for example.

  • Needs of other siblings

The Court will also analyse the needs of other siblings in order to ensure that all applicants receive a fair share of the estate. If one particular child is financially crippled while all other circumstances are similar, that sibling could in theory receive more from the estate.

For more information about contesting your parent’s will, contact our expert team of lawyers today.

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