In life it seems that few things are fair. Most people seem to think that what someone leaves us in a Will should be equal and therefore fair. This is not always the case.
When making a Will a willmaker is entitled to make any decisions that they wish with regard to who receives what and how much.
Courts are very aware of a willmaker’s entitlement to do this. It is only in very significant circumstances that they intervene to change.
Currently in Victoria the only people that can make a claim against an Estate is:
- spouse or partner,
- a child,
- step-child or
- a person who has always believed that they were a child of a deceased.
If you fit into one of the categories you may be eligible to challenge how things were divided in the Will. However, it is not enough that you were not treated equally. To make a claim to change someone’s Will and obtain provision from a loved one’s estate you must meet a range of criteria.
What you believe to be fair and equitable may not necessarily be so in the eyes of the Court.
Where there are some young children and some older children in a family, an equal division of a willmaker’s assets may not reflect the difference between what children have already received (say for education expenses) and what they may need in the future. An unequal division may also be appropriate where a particular child has made a more significant contribution to a willmaker’s estate, such as by working on the family farm or a child with a disability may have a greater need for a willmaker’s assets.
If you believe that a willmaker should have made provision for you it is important to seek legal advice from a lawyer such as those in our Estates team who are experienced in such matters. Call 03 5445 1000.
What is fair is not always what is equal.