‘Can we protect will from son’s ex?’

Steve and his wife are concerned that their former daughter-in-law may be able to make a claim on their estate after hearing about a friend’s recent experience. Estate planning lawyer Rod Cunich explains what they can do.

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Q. Steve
We are concerned after learning that a friend had his ex-spouse make a claim on his very wealthy father’s estate and win!

They were legally divorced for several years when her father-in-law died and she was not included in the most recent will. She had a child to the son.

We ask this because our son is soon to be divorced from his wife and we’re now concerned that our will (which will not include this woman) may be ignored and changed after we die. He has two children who are over 18 years of age. Is there a way to safeguard out wishes?

A. Steve, what happens in these situations is as much ‘art’ as it is ‘science’. That is, the outcome depends on your family’s actual circumstances and how a judge might deal with them.

Judgements vary so greatly that it is almost impossible to predict what might happen in any particular set of circumstances. That said, your ex-daughter-in-law has no direct legal right to challenge your will and seek an inheritance. But if she can convince a judge that she was in some way dependent on you (and the meaning of dependent varies greatly), then she might convince a judge that you should have made provision for her in your will.  

This outcome would be unusual, but it does happen as you well know. 

See an estate planning specialist solicitor (ask your local law society/institute for recommendations) and put your concerns to them.  If you provide all relevant facts, they will be able to advise if you are at risk and, if so, how best to minimise the risk.  

There are planning strategies available to help minimise the risk. You might strongly recommend to your son that as part of the divorce process he ensures he enters into a formal property settlement with his ex.

Often parties strike an informal arrangement they are happy with, but it leaves both parties exposed to a claim by the other in the future.

Rod Cunich is a lawyer with more than 30 years’ experience and who specialises in estate planning. If you have a question for Rod, simply email it to: mailto:[email protected]

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Disclaimer: This information has been provided by Rod Cunich and should be considered general in nature – legal advice should be sought.

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