NSW Contesting a Will - Unusual Circumstances

[JulieB]

My Dad passed away 21 years ago when I was 19 years old. I was always lead to believe that my Dad had a lot of insurance and was big on providing for his family in the event of something going wrong. All of Dad's kids, my sister and myself as well as 3 older kids from Dads first marriage, only received a very small amount of money from his deceased estate. We were very shocked as this was very unexpected. I don't know the state of his financial affairs when he passed but I know he had owned various property, his house and several insurance policies.

At the time of his passing he was married to his third wife. She did not have anything of value when they were married. Our understanding is that she received everything that Dad owned, including their house. I never saw a copy of my Dad's will even though I requested it several times. My Dad did not have any children with his last wife. She had one son from a previous relationship that was already at university when my Dad was with her.

I have recently found out that she passed away last year. It upsets me greatly to know that her only son would have received all of her estate, most of which would have been everything that was left to her from our Dad.

I guess we want to know are we entitled to contest her will? We were not close to her, in fact she had no interest in a relationship with any of Dad's kids. It just seems so unfair that a man that only lived with my Dad in his late teenage years and is not his biological child has ended up with everything that was his :-(

That's why I want to know about contesting a will.

 

[Sophea]

Hi JulieB,

I can understand why this situation may be upsetting to you. As far as I am aware, the only basis you would have to contest the will is via a family provision application and I don't believe you would fall within one of the categories of eligible persons who have grounds to bring such an application. These include:

• the wife or husband of the deceased person at time of death
• a person with whom the deceased person was living in a de facto relationship at the time of their death (including same sex partners)
• a child of the deceased person
• a former wife or husband of the deceased person
• a person who was, at any particular time, wholly or partly dependent on the deceased person, and at any time a member of the same household as the deceased person
• a grandchild who was at any particular time wholly or partly dependent on the deceased person
• a person with whom the deceased person was living in a close personal relationship at the deceased person's death

You can read more about contesting wills here: Family Provision Claims - Contesting a Will? [QLD] - LawAnswers.com.au Blog

 

[Tracy B]

Hi JulieB,

I also understand your frustration. Like Sophea pointed out, you would unlikely be successful at contesting the will of your dad's third wife.

Any other causes of action you might have had under general law would have expired (general limit is 6 years from cause of action) given that 21 years has passed.

It would not help with obtaining a share of your father's estate but if you would like a copy of your father's will (if there was one), you can try requesting it from the Supreme Court of QLD (search for Brisbane Supreme Court). However, given the long time that has passed, the office may no longer have a record of the will. Same with your father's old solicitors.