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Will claim – who can make a claim?

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Not everyone can make a will claim.

To learn about the basics of a will claim, click here.

In my last update, I outlined the basics of a will claim.  In this update, I will talk about who has the right to make a will challenge in Western Australia.

The Act limits the right to lodge a will claim to:

  1. Married or defacto partners of the deceased;
  2. Persons receiving or entitled to receive maintenance from the deceased as a former spouse;
  3. Children of the deceased, living at the date of death or born within 10 months;
  4. Grandchildren of the deceased, where:
    1. They were being wholly or partly maintained by the deceased prior to their death; or
    2. Their parent was a child of the deceased and that parent had died prior to the deceased’s death; or
    3. They were born within 10 months of the deceased’s death and their parent was a child of the deceased and that parent had died prior to the deceased’s death;
  5. Stepchildren of the deceased where they were being maintained by the deceased or were entitled to be maintained by the deceased, or where:
    1. The deceased received property from the estate of a parent of the stepchild, otherwise than as a creditor; and
    2. The amount of that property exceeded the prescribed amount, which (as of May 2016) is $517,000.00;
  6. A parent of the deceased, either within our outside marriage, where the relationship was admitted by the deceased being of full age or established in the lifetime of the deceased.

These rules can sometimes change.  The right for a stepchild to claim was only added in 2013.  Click here for a summary of these changes.

Note also that a deceased person can have both a married partner and a de facto partner, when they have separated from their married partner but have not yet divorced.

You may be surprised to learn that the question of whether a partner is a de facto partner is not always easy to answer, and is heavily dependent on the facts of the situation.  You should take specialist legal advice if you think that you may have been in such a relationship with the deceased.

You should also be aware that being in one of the above categories merely allows you to lodge a will claim against the estate of the deceased.  You then have to prove that you should have received more.

In my next update, I will talk about what makes a successful claim.

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About

Peter Nevin     pnevin@taylorsmart.com.au
Peter Nevin is a Partner in our Commercial Litigation practice group. He specialises in commercial and general litigation, and provides detailed advice on industrial relations issues to both employers and employees. He also provides advice and representation in estate disputes on behalf of executors, beneficiaries and third party claimants.

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