Kids miss out – what happens in a will dispute?
Contesting or disputing a will is an emotionally-charged event that can often be quite overwhelming.
In addition to dealing with the loss of a parent, you must also navigate the tricky legal requirements that come with contesting a will. Although it is always best to enlist the aid of a legal professional in these matters, we have put together a handy guide outlining the basics when it comes to children disputing a will.
Are children allowed to contest a will?
If you are a child of the deceased, you are eligible to contest the will. The term “child” in this instance includes:
- Any adult children
- Any children under the age of 18
- Any adopted children
Are grandchildren or step children able to dispute a will?
Unfortunately under Australian law, biological and step children are treated very differently. If you are a step child who wishes to dispute a will, you will need to show the court that you were either wholly or partially dependent on the deceased for your wellbeing. Similarly, if you are a grandchild of the deceased, you will need to show you were dependent on the deceased in order to eligible contest the will.
What if there is no will?
There may be some instances where a will does not exist or is not considered valid. In those cases, we should refer to The Succession Amendment (Intestacy) Bill, which commenced in 2010. According to intestacy, the entitlements will vary depending on who the deceased has left behind.
- Where the deceased leaves behind a spouse and child(ren), the spouse receives the whole estate.
- Where the deceased leaves behind a spouse and children (who are not the children of the deceased), the spouse receives the whole estate.
- Where the deceased leaves behind a spouse and children (who are the children of the deceased), the spouse receives their entitlements and the children share the remainder equally.
- Where the deceased leaves behind no spouse but children, the children share the estate equally.
- Where the child of the deceased has died but has surviving children, those children will take the deceased child’s share equally.
What does this mean for step children?
These days, we are seeing increasingly blended Australian families, which means that there are more instances of stepchildren being included (or disincluded) in wills. As previously mentioned, being a step child means that you are not automatically eligible to contest a will and will need to prove your dependence on the deceased. In order to determine your eligibility, the court will look at a number of factors including:
- The relationship between you and the deceased
- The age of the stepchild when the new family was created
- The type of support given to the stepchild by the deceased (financial, emotional, or educational)
Please note that to be eligible, you do not need to be currently dependent on the deceased. You do, however, need to show that you were wholly or partially dependent on the deceased at a particular point in time and a member of the same household at the time.
Challenging a will can be a complicated business, especially if you are unsure of your eligibility. If you think you may have been left out of a will or wish to contest, please contact our team today for a free consultation. Alternatively, download our will dispute checklist to see if you are eligible to lodge a dispute.
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