Amy Nikolovski

- 15 Jun 2023

  • Wills & Estates

I have been left out of the Will, now what?

By Amy Nikolovski, Managing Partner, Partner Responsible for Wills & Estates

So, your loved one has passed away and you have found out that you are not a beneficiary of the Will or adequate provision has not been made for you, what do you do?

Under the Inheritance (Family Provision) Act 1972 (SA), you may be entitled to make a claim.

Who can make a claim?

Only certain people can make a claim for provision under the Act, they are:

1.  the spouse of the deceased person;

2.  a person who has been divorced from the deceased person;

3.  the domestic partner of the deceased person;

4.  a child of the deceased person;

5.  a child of a spouse or domestic partner of the deceased person being a child who was maintained wholly or partly or who was legally entitled to be maintained wholly or partly by the deceased person immediately before his death;

6.  a child of the child of the deceased person (grandchild of the deceased);

7.  a parent of the deceased person who satisfies the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime;

8.  a brother or sister of the deceased person who satisfies the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime.

If you do not fall in one of these categories, you cannot make a claim under the Act.

Just being a person entitled to make a claim is not enough to satisfy the two-prong threshold, you must also satisfy the Court that you have been left “without adequate provision for your future maintenance and advancement in life”. This means you must show you have a financial “need” like having dependents or a mortgage.

In many cases, even when a child has been estranged from a parent for some time, estrangement alone has not prevented an applicant to be successful in a claim for provision from the Estate.

If you want to challenge a Will, strict time limits apply so it is worth speaking to a member of the highly experienced DBH Wills & Estates team on 1800 324 324 or via our contact page as quickly as possible, otherwise your right to claim may be lost.