Inheritance disputes are increasingly common in Australia, especially within blended families and complex estates. According to recent legal analyses, factors like unequal distribution, complex family dynamics, and exclusion from wills often lead to contested estates. For spouses and children aged 45–70, understanding your legal rights is crucial when facing such challenges. This guide, brought to you by Legal Finda, aims to demystify the legal processes involved in contesting a will and asserting inheritance rights in contested estates.
What Are Inheritance Rights in Contested Estates?
Inheritance rights in contested estates refer to the legal entitlements of eligible individuals—such as spouses and children—to claim a portion of a deceased person’s estate when they have been unfairly excluded or inadequately provided for in the will. These rights are protected under the Succession Acts of each Australian state and territory and aim to prevent dependents from being left destitute.
When disputes arise, eligible individuals can make a Family Provision Claim to the court, seeking a fairer share of the estate based on their relationship to the deceased and financial needs.
Spouse Inheritance Rights in Contested Estates
Under Australian law, both legally married spouses and de facto partners are recognised as eligible persons with strong inheritance rights in contested estates. If a spouse is excluded from the will or given an unfairly small portion, they may have grounds to contest the distribution.
Key factors the court considers include:
- The duration and nature of the relationship
- The spouse’s financial and non-financial contributions to the household and estate
- The current and future financial needs of the spouse
- Any responsibilities or obligations the deceased had towards the spouse
Australian courts aim to uphold fairness and ensure that surviving spouses are not unjustly deprived of inheritance.
Children’s Inheritance Rights in Contested Estates
Children—including biological, adopted, and sometimes stepchildren—also have the right to contest a will if they believe they’ve been inadequately provided for. Their inheritance rights in contested estates are evaluated based on:
- The strength and closeness of their relationship with the deceased
- Their financial needs and personal circumstances
- Any assistance they provided to the deceased or their estate
- The value and nature of the estate as a whole
Because wills can sometimes favour one child over another, especially in second marriages or estranged relationships, the courts carefully consider whether the testator had a moral duty to provide for each child.
The Legal Process for Asserting Inheritance Rights in Contested Estates
Contesting a will in Australia involves several legal steps, which vary slightly across jurisdictions but generally follow a similar structure:
- Confirm Eligibility: The first step is to determine whether you qualify as an “eligible person” under the relevant state's Succession Act.
- Seek Legal Advice: Consulting a lawyer with experience in inheritance rights in contested estates will help assess the strength of your case and guide you through the complexities of the process.
- Notify the Executor: Inform the executor of the estate about your intention to contest the will.
- File a Family Provision Claim: Lodge your application with the appropriate court within the statutory time limit (often 6–12 months from the date of death or grant of probate).
- Participate in Mediation: Many jurisdictions require mediation before a claim proceeds to court. This stage often results in settlements.
- Court Determination: If mediation fails, the court will assess the claim and may order a redistribution of assets to ensure adequate provision.
Common Scenarios That Trigger Contested Estates
Several real-life scenarios often lead to contested wills, including:
- A spouse receives little to no provision due to estrangement or a second marriage
- One child is heavily favoured over others without a clear justification
- Stepchildren are excluded despite playing a significant role in the deceased’s life
- Adult children with disabilities or financial hardship receive less than what’s needed
- Grandchildren who were financially dependent on the deceased are overlooked
Each of these circumstances involves complex emotional and legal challenges, making the protection of inheritance rights in contested estates all the more important.
Time Limits for Contesting a Will in Australia
Strict timeframes apply when asserting inheritance rights in contested estates:
- New South Wales: 12 months from the date of death
- Victoria: 6 months from the grant of probate
- Queensland: Notice within 6 months; claim within 9 months
- South Australia & Western Australia: 6 months from the grant of probate
Failing to lodge a claim within these deadlines may forfeit your right to contest, although exceptions can sometimes be granted under special circumstances.
What the Court Considers in Family Provision Claims
When evaluating whether a will has failed to make adequate provision, courts assess a variety of factors:
- The size and structure of the estate
- Competing claims of other beneficiaries
- The claimant’s current financial situation
- The deceased’s obligations to the claimant
- Contributions the claimant made to the deceased’s welfare or estate
The goal is to ensure that inheritance rights in contested estates are upheld, and that fair, reasonable outcomes are achieved for all parties involved.
Outcomes of a Successful Inheritance Claim
If your claim is successful, the court may order a redistribution of the estate, such as:
- A lump sum payment
- Periodic support payments
- Transfer of specific assets (e.g. property or shares)
These outcomes aim to rectify unfair provisions in the original will and secure the financial well-being of claimants.
Legal Costs and Financial Considerations
Pursuing inheritance rights in contested estates can involve substantial legal fees. In many cases, the court may order that legal costs be paid from the estate—especially if the claim is successful. However, if the case is unsuccessful, claimants may need to cover their own costs and potentially contribute to the other party’s legal expenses.
Therefore, assessing the strength of your claim with a legal professional is critical before proceeding.
Conclusion
Navigating inheritance rights in contested estates is a challenging but essential process for those who believe they’ve been treated unfairly in a will. Whether you're a spouse, child, or other eligible family member, Australian law provides legal pathways to ensure that you receive the support and share of the estate to which you are entitled.
At Legal Finda, we understand the emotional and financial stress that comes with inheritance disputes. Our team of dedicated estate law professionals is here to guide you through every step—from assessing your eligibility to representing your claim in court.
Contact Legal Finda today to explore your legal options and secure your rightful inheritance.
.png)