Call us 8470 0313

Level 4, 195 Victoria Square, Adelaide

Stevens Law - Lawyers Adelaide

The two tests you need to pass to successfully claim against a Will

ALL BLOG ENTRIES ^  




If you have googled ‘family provision claims’, ‘inheritance disputes’ and ‘challenges to Wills’ by now you are probably overwhelmed by the amount of information out there.

It is true that every matter turns on its own facts and there are strict time limits that apply to commencing your claim for provision from a Will and there is a lot of strategic advice a lawyer can offer to help you the fact is your entire claim turns on only two tests and those tests aren’t that mysterious.

In this blog we get back to the basics of the two tests you need to pass to win in a claim against a will for further provision. These tests have been around for a long time and were best explained byt he High Court in a case called Singer v Berghouse.

Test 1(of 2) in a claim for provision under a Will:

Has the deceased person left you with less than you need? Surprisingly straight forward isn’t it? If you have been left with nothing you’re likely to think that is not enough and certainly less than you need. If you have been left with a little, you probably think that is less than you need as well.

Unsurprisingly, lawyers break the test down and argue semantically about the difference between words like “proper” and “adequate”. It is also necessary to look at how big the estate is and what the needs of other people are. It might well be acceptable for everyone to get less than they need if there wasn’t much to go around in the first place or if one of the beneficiaries needed more than another.

If you pass test 1 you proceed to test 2.

Test 2(of 2) in a claim for provision under a Will:

Having determined that you were hard done by in test 1, test 2 simply asks “how much should you have received?” Again, the test itself is quite straight forward, but, like test 1, lawyers engage in arguments that look at the totality of the estate and the need of the possible claimants and even the nature of the relationship between the deceased and the claimant. This introduces a subcomponent of the test commonly called a ‘moral claim’.

Because of the subtle nuances in the way the tests are applied it is worth talking to a lawyer as soon as possible after you realise you may have been hard done by in a Will. The purpose of this blog is only to point out that there are only two tests you need to pass to win in a claim for provision under a will. The tests are small and in themselves are not that complex. Still, you ought seek legal advice as soon as possible if you are considering making a claim for provision. More often than not the costs of legal advice are paid in whole or part from the estate.

We offer a free initial discussion to appraise the prospects of a claim for provision and are prepared to run claims for provision and challenges to Wills on a no win no fee basis. There’s nothing to lose in asking.