My sibling received more of my parent’s inheritance than me. What can I do?

Can I challenge My parents WillIn the emotional turmoil of your parents passing away, sorting out your parent’s estate is just another important task to add to the list of things to do. But what can you do if you’ve read the Will and you’re going to receive less of their estate than you originally thought you would? Or, if your sibling has received a greater portion of the estate?

Am I entitled to make a claim?

Section 6 of the Inheritance (Family Provision) Act 1972 states that a child of the deceased person is entitled to claim under this Act. Others who are entitled to claim include, but are not limited to, the spouse of the deceased, a person who has been divorced from the deceased and a domestic partner of the deceased.

Establishing a Need

In order to make a successful claim pursuant to the Inheritance (Family Provision) Act, you must be able to demonstrate that you have been left without adequate provision for your proper maintenance, education or advancement in life.

The fact that the Will, for example, doesn’t provide for all children is not in itself something that can be challenged (unless there is a dispute of the validity of the Will, i.e. forgery, undue influence, etc).

Further, if you have a successful career, own a house, have adequate savings and are in good health, it would be unlikely that you would be able to prove that the Court should go against the wishes of the deceased.

Time Limits

You have six months from the date of a Grant of Probate or Letters of Administration (i.e. once the estate has been distributed) to make a claim through the Courts. There may be special circumstances whereby a Court will grant an extension of time, but it is best to act as though this will not be granted.

Making a Claim

To make your claim against the deceased estate, you must file a Summons and an Affidavit (or a Statement of Claim). The Summons will simply state what orders you are seeking while the Affidavit will include a copy of the deceased’s Will (if available) and include the details of the estate, your financial position, your relationship with the deceased and any other relevant facts.

The Court will then decide whether the deceased’s Will left you without “adequate provision for [your] proper maintenance, education or advancement in life”.[1] If the deceased failed to do so and your need has been established, an order may be made which provides you with a greater share of the assets.

What if my siblings and I received equal portions of the estate but I feel I am entitled to more?

In this situation, you are still able to make a claim for greater provision. You may be successful in this if you can establish you have a greater need for financial support than your siblings. Situations where this may be established is if you were a dependant of the deceased prior to their death and your siblings were not, or if the deceased made promises in relation to the distribution of the estate.

Case Study

In the Western Australia case of Vigolo v Bostin, the deceased’s son made a claim for provision from the deceased’s estate on a purely moral basis. The deceased, Lino Vigolo had not honoured a promise to his son, Virginio Vigolo for provision of a particular farm. Virginio stated that the deceased had always told him that the farm would be his inheritance and that this promise persuaded the applicant to live and work on the farm for very little payment.

The High Court looked at the phrase “adequate provision for proper maintenance” and stated the question of whether the provision is adequate is objective and can be ascertained by looking at the facts, but when looking at what is proper, discretion is used.

In this case, Virginio was not successful in his claim for further provision due to factual circumstances of the case, such as other benefits he reaped from his work on the farm. However, the High Court confirmed that a claim can be successful on the basis of a moral duty stating that “Such [moral] considerations have a proper place in the exposition of legislative purpose”.

If you wish to make a claim on a deceased estate please contact Stefania, our experienced Wills and Probate Solicitor on

8410 9294.

 

[1] Inheritance (Family Provision Act) s 7(1)(b)