How can you tell if you are being left out of a will?

Candice is worried her mother is trying to cut her out of her will.

How can you tell if you are being left out of a will?

Candice* is worried her mother is trying to cut her out of her will. What can she do to remedy the situation?

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Q. Candice
I have a question for you regarding your article titled – How best to prepare a will to leave out an estranged child. I am in the opposite situation where I find myself potentially being left out of a will because my mother has a problem with my husband, who is a lovely man. How does one manage a situation to avoid being left out of a will? Do I need to provide sufficient evidence that I have made contact with her over a period of time? What do I need to do?

My mother is ignoring me but is still emailing my husband on an ad-hoc basis to send messages to her grandchildren, but only on their birthdays or at Christmas. I find it strange that she would bypass me and contact my husband, who she does not like and would see him as being the person that has caused problems within the family. I believe that she is ensuring that I am left out of her will and does not make contact with me, so there is no evidence if I contest it. Does this sound familiar in your experience of dealing with wills and family disputes?

A. Candice, there is nothing that you can legally do to secure an inheritance.

Restoring and rebuilding your relationship is the best avenue to success.

If you are left out of your mother’s will or you are left an inadequate inheritance you have a statutory right to challenge the will to seek orders modifying the will to make adequate provision for you.

Your chances of success in any such application depends on approximately 20 issues that the court will consider.

The appropriate time to explore your rights is after your mother passes, and the will becomes active, at which time you need to consult a specialist family provisions lawyer who will explore your rights with you.

*Not her real name.

Rod Cunich is a lawyer with more than 30 years’ experience in estate planning. If you have a question for Rod, email it to newsletters@yourlifechoices.com.au.

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    Disclaimer: This information has been provided by Rod Cunich and should be considered general in nature. Seek legal advice before acting on this information.

    These answers are general information only, not specific legal advice. You should not rely on these answers without specific advice from an expert who can review all the relevant documents and circumstances.





    COMMENTS

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    Tood
    8th Jul 2020
    11:41am
    No one is entitled to be in someones will unless a minor child, get over it and move on. If you go to a lawyer it will probably cost you what you might have received anyway.
    older&wiser
    8th Jul 2020
    9:48pm
    Tood - I totally agree. Young dependent children yes - but not adult, self dependent, non reliant children. Birth should not automatically mean an inheritance. You should be able to leave what ever you have, to ever you want. I face a similar situation. My sole child (daughter) chose nearly 20 years ago to live her own life, has had nothing to do with me, is very, very financially well off with her family, more than I, a single person, could ever dream of. But through other family, she has commented that she expects to inherit my estate.
    Jon
    8th Jul 2020
    11:43am
    What about under the Family Provisions Act ? I'm going to experience the same issues when both my parents and my wife's father pass.
    panos
    8th Jul 2020
    12:21pm
    The best things in life are not free.

    Wills are a lawyers feeding trough... Really parents should stop being so bitchy, your dead who cares who gets your money or assets....

    People are so out there with vindictiveness
    Chris B T
    8th Jul 2020
    1:15pm
    If the Person with "Assets" are so determined not to allow for their "Assets" to a particular person or whomever don't leave any.
    Use your "Assets" now, if need be keep enough for Funeral/Wake and at "Wake" have a note to say the "Cookie Jar Is Now Empty".
    {;-($)
    sunnyOz
    8th Jul 2020
    9:58pm
    Agree with you Chris. I wish I could plan it that I spend my last dollar the day I pop off.
    dabi56
    8th Jul 2020
    1:32pm
    When my mother died 20 years ago she left the bulk of her small estate to my sister and I and only a small amount to my brother. He challenged the will as was his right, if it had gone to court the judge could have taken the court and lawyers fees out of the estate. So I asked our solicitor what were past settlements in cases such as these and he told me a percentage. So my sister and I as executors offered him that but with only 24 hours to decide. He took it rather than risk going to court and having to pay his own legal costs, It is called Go Away Money.
    Jon
    8th Jul 2020
    5:31pm
    That's often the way it goes. In my case I've not spoken to my parents for 25 years (long story), however I'm still executor of their will and I *know* it's 25% to each of the 4 kids. Two of my siblings have stated that they are going tor 50% each, so we're fighting it.

    In my wife's case, her mother died a few years ago and her Father, when he goes, has left everything to my wife and her sister. Her sister passed from bowel cancer about a year after her mother and the will states that 50% to each of the daughters, and if they pass before the will is read then their share goes to that daughter's kids.

    Given that her 3 crotch goblins organized their grandmother's funeral and slighted my two daughters by saying "she is survived by her 3 grandchildren", not the 5 that she actually has (that was the eldest girl, who has become a vindictive bitch), they have stared that they're going for a 4 way splot when their Grandfather dies when in reality my wife gets 1/2 and they get 33% of their mother's 50% share each. (and we;re talking at least 7 fugures !!)

    They try that crap, I'll have the little scroats in court the next day - I'd rather see the estate go in legal fees than let them have their own way..
    Farside
    8th Jul 2020
    5:44pm
    Blanche D'Alpuget might have done better if she had paid 'go away' money to former heroin addict and general train wreck step-daughter Rosslyn Dillon, instead of the $750k given to each of the three kids in accordance with Bob Hawke's will.
    Justsane
    13th Jul 2020
    1:26pm
    I am sorry to do this, Dabi56, but this is the grammar police here. You say: "she left the bulk of her small estate to my sister and I". In this case it should be "to my sister and me". After all, you would say: "she left it to me" not "she left it to I". You can say: "my sister and I ....offered him" because the "I" here is the subject (or part of the subject) of the sentence. But in the former case the 'my sister and me" are the object of the sentence (in this case an indirect object because of the "to") and you should use "me", not "I".

    I am definitely not singling you out, Dabi, I hear and see this mistake everywhere. I think it must be the result of learning from over zealous teachers in the past, who, when children said something like "Me and my sister went down the shop", insisted it must be "My sister and I", so the kids got the impression that you should always use "I" when someone else is mentioned as well, which is not the case.
    JAID
    8th Jul 2020
    1:35pm
    "No one is entitled to be in someones will unless a minor child" Exactly Tood. Law or no law, the sense of entitlement to someone else's wealth is just avarice unless they are fairly a dependent.

    If all carried this appreciation a huge amount of angst would just disappear from life.
    Farside
    8th Jul 2020
    5:47pm
    Rosslyn Dillon successfully challenged Bob Hawke's will and she was definitely not a minor.
    KSS
    8th Jul 2020
    2:24pm
    The mother (or anyone come to that) has a perfect right to bequeathe her assets as she wishes. No one has a right to expect or demand to be left anything. Indeed no right to expect there would be anything to leave in the first place.

    This smacks of a misplaced sense of entitlement to me.
    Farside
    8th Jul 2020
    5:48pm
    The law does not share your view and provides capacity for children to challenge a parent's will.
    Youngagain
    13th Jul 2020
    8:43pm
    Yes, Farside. The law is an ass. Lawyers have written the law to line their own pockets. Their view is that estate assets are 'free money' and they have as much right to it as anyone. They therefore not only write the law in a way that is disgusting and denies the deceased their moral and ethical right to leave THEIR assets to the persons of their choosing, but also encourages wrongful, untruthful, greedy and immoral claims by people with no integrity or decency. And worse, they then advertise that these immoral people can make claims at no cost and with no risk, but executors don't have any rights at all except to either hand over the booty or suffer months of torment and horrendous legal costs. The courts hand a loaded gun to people who want to contest a will and tell them to 'go for it' - blackmail the executor for as much as they can extract. None of the usual protections exist - such as the option to apply for dismissal of a claim that is based on a pack of lies. It's disgusting!
    Hardworker
    8th Jul 2020
    5:18pm
    While I agree with the answer given about the Will I do think there could possibly be another issue here. Personally I would be more concerned about the mother's mental health. I would be keeping an eye on this strange activity and maybe contacting her doctor or other members of the family. Her doctor will not discuss her health with you as it is a privacy issue but at least you will be making him/her aware of your concerns. To me it is either a mental health issue or game playing and you need to know which one. Don't make assumptions as the reasons could be quite different from what you think. Ask questions of anyone who may be able to throw some light on the reasons why your family is being treated this way. I lived with a narcissist for a long, long time before anyone realized what was really wrong and then that changed everything as we then knew where the problem actually lay.
    GOW
    9th Jul 2020
    11:40am
    My husband and I don't have children, I am not inheriting anything, my brother is getting it all. I don't mind he has had a lot to put up with. My husband and I are leaving EVERYTHING to charities and a hospital with specific requests on what their share is spent on. BUT before all that happens the JACK RUSSELL inherits the lot with a nominated person/s to care him until he dies of natural causes and they get to live in our house rent free for their trouble.:)
    Tomtom
    29th Jul 2020
    5:30pm
    Isn't the easy way avoid any contesting just to have all assets in joint names and all cash in a joint account, leave enough cash in a separate account to pay for the funeral (or pre pay it) in fact as I understand it in which case there is no need for a Will as everything is automatically owned by the surviving partner? Then "they" have a problem I guess!


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