Are you an unhappy beneficiary under a Will?


There are many reasons why a beneficiary of a deceased estate may be unhappy.

Some of the common reasons are:

  • the deceased didn’t provide the beneficiary with any or any adequate inheritance;
  •  if there is a Will, the beneficiary doesn’t think the will is valid and this can be for the following reasons:
    • the deceased didn’t have the mental capacity to make the will, for example, because they suffered from delusions of mind;
    • the will was made in suspicious circumstances, for example, where a gift is made to the person who drafted the will;
    • the will hasn’t been made properly, for example, it hasn’t been executed in the presence of two witnesses over the age of 18 years;
    • the deceased didn’t have a knowledge and understanding of the will, for example, they didn’t read it and just signed it;
    • the will is a forgery or fraud was involved in the preparation of the will;
    • the will was made as a result of undue influence, that is, the person was put under so much pressure in making the will that their own will was overborne.

What can you do if you are unhappy?

Like most things in life, in order to change the situation, you will need to take some action.

You also need to bear in mind that the law expects unhappy beneficiaries to act within certain time limits.

You should consider some basic steps as follows:

  • obtain legal advice as soon as possible after the death because time limits may apply to your situation and you need to know what time is available to you;
  • if you haven’t got a copy of the Will, ask for a copy from the Executor. The people entitled to a copy of the Will are referred to below;
  • obtain a copy of the Certificate of Death from the Registrar of Deaths because the cause of death may be important to your case. For example, if you feel that the deceased lacked the mental capacity to make the Will due to dementia, the death certificate may shed light on the deceased’s medical conditions;
  • let the Executor know that you are unhappy with the Will and that you don’t want them to distribute any property for the time being;

How can legal advice help?

Legal advice and assistance may enable you to take initial steps to advance your position. Some example of the sorts of steps that a lawyer could assist with include:

  • giving formal notice to the Executor not to distribute the Estate because you intend seeking a better inheritance;
  • lodgement of a probate caveat to prevent others from applying for probate of the Will;
  • requesting a copy of the Will from the Executor or whoever is in possession of the Will;
  • requesting the file of the professional person who was involved in preparing the Will;
  • obtaining the death certificate;
  • undertaking searches to ascertain whether any land and other property owned by the deceased.

A lawyer can also assist you by providing you with advice in relation to whether your case has merit and the likely costs involved in taking action.

In relation to some Estate matters, some or all of your costs may be paid out of the Estate however, you will probably need to be able to fund the action.

Who is entitled to a copy of the Will?

The following people are entitled to a copy of a Will.

  • a person mentioned in the will, whether as beneficiary or not and whether named or not; or
  • a person mentioned in any earlier will of the testator as a beneficiary and whether named or not; or
  • a spouse, parent or issue of the testator; or
  • a person who would be entitled to a share of the estate of the testator if the testator had died intestate (that is, without a will); or
  • a parent or guardian of a minor mentioned in the will or who would be entitled to a share of the estate if the testator had died intestate; or
  • a creditor or other person who has a claim at law or in equity against the estate; or
  • a person who may apply for better provision from the estate under section 41 of the Succession Act, (that is a spouse, a child, or someone who was supported by the deceased being their parent, the parent of the deceased’s child under the age of 18 years, or a person under the age of 18 years).