Will and Inheritance Issues with family and outlaws

[Landlover]

I am recently diagnosed with a serious life threatening illness and still have no valid will

I am not in the 'old' category although I have grandkids.

My issue is that I am separated but still legally married and although have no contact with my 2 of my married children I am wondering 'where I stand' legally with regard to possible claims from spouse and 'absent' children.

Do my 5 step children also have ability to claim from my estate?

All my grandchildren are not legally adults.

My estate is not extensive but as in most families a death can bring out the worst in people.

Am I able to state particular items that are to be bequeathed to particular people.

 

[Pretty]

I am recently diagnosed with a serious life threatening illness and still have no valid will

I am not in the 'old' category although I have grandkids.

My issue is that I am separated but still legally married and although have no contact with my 2 of my married children I am wondering 'where I stand' legally with regard to possible claims from spouse and 'absent' children.

Do my 5 step children also have ability to claim from my estate?

All my grandchildren are not legally adults.

My estate is not extensive but as in most families a death can bring out the worst in people.

Am I able to state particular items that are to be bequeathed to particular people.

With the valid will through solicitor, your spouse and 2 absent children still can contest the will after you die. You can't do anything about it. At the end of the day judge will decide your estate if your spouse and absent children success of the claim.
I recently been through a nasty claim from my late partner's brother, which at the end settle before going to the court, at mediation i agree i gave him (my late partner brother) 250K so he didn't proceed to the court. If he proceed he might get more from the estate or may be he loose and get nothing but still legal expense from both side will come out from the estate.

 

[nww]

landlover.

Sorry for your problems.

The best thing to do is seek professional advice and this may
help some of your fears which is the last thing you need now.

also ask about having an affidavit drawn up to include with your will.

 

[kathryn d]

Landlover,
Also sorry to hear about your situation.
As mentioned, consult a lawyer and explain the situation, and your concerns.
From what I am able to understand, you would mention in your will that you are specifically excluding "named person" from your will. I've also read about people excluding any offspring coming forth afterwards. (any chance of other children you don't know about?)
Another option, if you know your time is very limited, is to give that property to the family members now, with the condition you have control of the property until your death.
At first I considered suggested just adding your beneficiaries to the deed, as joint tenants... but unsure if that could be contested later. Minor children could have their share "in trust" and just name someone as the executor to oversee the assets.

 

[Pretty]

My partner had include the affidavit of clause into the will (excluding my late partner's brother with the reason) but that doesn't help at all. I live in Victoria, and as far as i know in Australia, the clause does not support the will.

Adding the name (beneficial) in to the tittle as joint tenancy would not help too. If you die in between 3 years of the adding the name as joint tenancy, the claimant still can get the chance to contest the will.

Trustee would be a good idea, but they charge % of your estate, so it quite a lot. Different state different % trustee charge.

 

[kathryn d]

I just did a google and found a bit of info.
Usually needs to be contested with 6 months of probate.
If there are dependants, sufficient financial support has to be shown in the Will.
Reasons should be left in the Will why you have excluded some people.

Landlover, have you considered getting a divorce now?

 

[Terryw]

Landlover,

I am sorry to hear about your illness.

You should see a lawyer asap and get a valid will drawn up. Without a will your legal wife could inherit your estate, or the majority of it as the default beneficiary.

However, even with a valid will your family members (and even non members) may be able to make a claim. This is especially the case if you are supporting anyone now - financially or non financially.

A way around this is to deal with your assets now to make sure they don't fall into your estate at death. Sell them, give them away or transfer into trusts - but make sure you consider the estate planning of the trust.

 

[Pretty]

This forum is great, there are many true story and you can chat with a lot of people that had this experience of "family provision" claim in Australia. I would encourage you to go to your local MP to change the law.

http://www.aussielegal.com.au/forum/forum_topics~FID~45.htm

 

[Terryw]

This forum is great, there are many true story and you can chat with a lot of people that had this experience of "family provision" claim in Australia. I would encourage you to go to your local MP to change the law.

http://www.aussielegal.com.au/forum/forum_topics~FID~45.htm

Why change the law?

What if a child is left nothing in a will because the parents leave everything the RSPCA?

 

[Pretty]

I mean change the law where non relative or even adult brother sister which is wealthy could not make a claim against the estate. I am not saying child, wife/partner or any current dependent (financial).

My late partner's brother own his home without mortgage. Estrange with my late partner for 10 years. I drove around his house to investigate (which i predict his home worth more than 3 mil). But because he make a claim that he is poor, which i know he won't proceed to the court because he lie everything in his sworn affidavit about me moving out of the house i live in (estate home), lie about i sleep with other man, lie about he had more than 100K credit card debt but not willing to show his debt statement and many more. He don't have any witness because he is lying everything and who want to help him to lie. I had a lot of witness that prove that he his lying.

At the end i have to pay 105K of legal expenses (my fault-too many witness affidavit and it cost money) for both party, i have to pay 105K (my own money, not the estate money) stamp duty because it presume i buy 105K % out of the estate.

Back in my former country, my grandmother left everything to my mother's elder sister, and mother and other sister try to contest, but there is no family provision rule in that country, so my mum get nothing but my mum is living comfortably at the moment.

This is just an exercise to build up cost for the legal people. Where one person think that i got a lovely big family (children, grandchildren, sister and brother) which everyone care about each other but you never know after you die, the nasty thing bring out from everyone and you will see relative and non relative fighting for money in the court. If there is 5 party contesting the will for a huge estate, there will be 5 lawyer, 5 solicitor, 5 barrister and 1 mediator. They all cost money and each will charge probably 10 to 35K and you can calculate how much will come out of the estate. At the end the estate will left nothing. Who will inherit the estate, the legal people. Why is that because of the law is so wisely open to everyone. You can see the history of family provision which had change a lot from the dependent (wife and children) to everyone.

Example, if your adult brother live at your home rent free and if you die, that it, he will share part of your estate with the wife and children.

 

[Pretty]

Like Landrover said in his post, he is separate from his wife (not divorce) and the 2 adult children is not talking to him for many years. So i presume that his wife get some of the money from the separation and the children is independent and he would love to leave to someone else that may dependent on him or charity. But which i look at this case, the wife and adult children will get most or all of the estate if the success the claim.

Consult with the solicitor is no use, my solicitor lie to me. Before my partner die, i have ask a lot of question about claiming of the estate, and my solicitor said i am save from this hassle, and with valid will no one can touch me, but what is the outcome now, i have spend so much money on this family provision. Lawyer never tell you the overall story because they can have the chance to make money from any claimant on the estate later in the future.

 

[kathryn d]

Pretty,
You also stated that you settled out of court.
You will never know what would have been decided in court now.

Landlover should get a competant lawyer.
If setting up a trust, and paying fees is the way to go, so be it.
At least he knows where his estate is going.

Landlover should also know if he has any financial dependants he needs to consider to lower any chances of contesting of the will.

 

[Pretty]

I settle my case last month Nov. My late partner pass away last year June. The house and the company still in the process of changing in to my name. So is still open wide for other people to contest. That is why i am so worry at the moment.

If settle in mediation, it will take 20 month average to change into the beneficial name.

If settle in court, average will be 3 years after testator death.

My lawyer is a famous and competent lawyer firm, but every lawyer is same.

The will that my partner did last year cost around 9K, is a lot, which came out from my personal money. So i need to pay stamp duty for it.

Is not only the dependent can claim the estate, people in the pass that build your wealth can also contest against the estate. Because my late partner never help him financially, (he is wealthier than my late partner) my late partner's brother claim and lie about building and paying off the house and the company and contribute a lot of work in the company (my late partner own). Because he is wealthy and he need a reason to claim that why he claim that he had contribute on the estate. I had witness (my tenant live with us and the manager of the company) and statement (all my wages straight into my late partner saving account) that prove him wrong.