‘How do we stop son’s ex from plundering our estate?’

Steve fears his ex-daughter-in-law may be able to make a claim on his estate.

‘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:newsletters@yourlifechoices.com.au

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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.





    COMMENTS

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    ozirules
    3rd Jul 2019
    11:25am
    Here we go again, highlighting the fact that the law seems to think that the contents of a will are merely a suggestion of where the deceased wants his/her assets to be distributed. It's a pity we cant contact the dearly departed so that he/she can tell the courts to butt out and let their wishes be carried out as stated in the will. Each time this subject is raised it pisses me off that a will can be contested even if it was legally written out by a sane person with credible witnesses. There has to be a better way that I can ensure my wishes are carried out when I pop my clogs. grrrr
    Russell
    3rd Jul 2019
    11:42am
    It is about time that the law was changed so that MY wishes of how MY estate is distributed and not some over the top idiot judge. MY last will and testament is MY legal right as to how MY estate is to be distributed so if you cannot respect MY right then I will not respect your right to alter MY will.
    Farside
    3rd Jul 2019
    1:58pm
    Russell, make it easy on yourself and just assume your wishes will be followed regardless whether written in a will or thought about in the shower or anything in between. After all you are not going to be around to do anything about if your estate is distributed otherwise so it's not your problem.
    Cat
    3rd Jul 2019
    12:47pm
    These women are their family. They are the mother of their grandchildren. Using language like "He has two children who are over 18 years of age" that creates a disconnection between the son and her as joint parents and their children as their own grandchilden and all of them including their daughter-in law whether she is an "ex" to to them or not are all family whether they like it or not.

    People apparently still seem to dispise the idea of acknowledging the sacrifice and compromise women make for their parents in-law's sons and grandchildren and the substantive contribution that is made to their family by their daughter in-law, and the economically depreciated position that leaves for her as an outcome. She is at this point heavily invested in what projected future prosperity that will emanate in what ever form it would occur. Once she has made the contribution that she invested a portion of her life' efforts, sacrifices and compromises for, she can't recoup that. Future investment and efforts of and by herself and the prosperity she could obtain from such would be limited by the substantial past investment of her efforts in their family which she can not go back and undo, but yet seemingly perceived as something she should be totally cut out of when it comes to a proportionate reward being attributed to the rest of the family.

    Totally excluding her from any future prosperity that she would have rightfully expected and been entitled to out of the proportion of contribution she made during the marriage could potentially be exploitative, depending on the individual case.

    And that is no doubt why a person might be able to successfully obtain a share of an estate. But it could likely be considered a share of the son's share that she might be proportionately be entitled to but was not accounted for in the will. In other words because the parents did not consider her as part of that share, then his share is increased and her share of that paid directly out of the proceeds of the will.

    Regardless of how it is calculated and paid in each case, her current and projected situation would be taken into account, along with how long they have been divorced, whether the divorce settlement took a share of future proceeds into account, and that would limit what she would be entitled to in such a will.
    Russell
    3rd Jul 2019
    3:00pm
    She may be entitled to share my sons estate but she has no entitlement to my estate and no court should be allowed to change my legally registered will. If courts are allowed to give my estate to who ever the judge wishes to then why have I got a legal will because it means nothing when people can change it. My rights to give my estate to who ever I wish are not being respected. No one should be able to interfere with a legally written and witnessed last will and testament of any person. To interfere with a persons will is to show a total disrespect to that persons rights as to how their estate is to be divided and as that person cannot defend their right then it should be against the law
    KB
    3rd Jul 2019
    1:39pm
    Divorced membersr in law has no legal right to any inheritance. If there is grandchild then make sure you make provisions for the child
    Farside
    3rd Jul 2019
    2:01pm
    KB says "Divorced membersr in law has no legal right to any inheritance" and yet main premise of the article is the law may find otherwise. Who to believe?
    KB
    3rd Jul 2019
    1:39pm
    Divorced membersr in law has no legal right to any inheritance. If there is grandchild then make sure you make provisions for the child
    MICK
    3rd Jul 2019
    3:15pm
    Trusts? They are good because the litigant has to have the money to challenge and have a limited chance of success, so ambulance chasing lawyers will generally not touch them.