1st Nov 2017
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The new inheritance law that should have you writing your will
Author: Ben Hocking
New inheritance law starts today

Surviving partners will no longer share the inheritance with their children when their loved ones pass away without a will, after new laws came into effect today.

The change to the Victorian legislation aims to address the significant financial insecurity and angst surviving partners have faced under the current law.

Wills and estate specialist with law firm Rigby Cooke Lawyers Rachael Grabovic says the laws will ease the pressure on surviving partners.

“Currently, if a person dies intestate (without a will), their partner is entitled to the personal chattels, the first $100,000 of the estate and one third of the balance of the estate, with the remainder going to the child or children,” Ms Grabovic said.

“For surviving partners with mortgages over jointly-owned property, the survivor often couldn’t cover the repayment of the mortgage with their share of the estate, which caused much strain and additional turmoil at an already distressing time.

“The new law provides that where the intestate leaves a partner and children, or grandchildren or more remote lineal descendants of that particular relationship, the surviving partner is entitled to the whole of the intestate’s estate.

“The sweeping nature of this new law makes … (preparing a will) even more important, particularly for anyone wishing for their estate to be administered differently upon their passing.”

The new law also takes into account the differences in family structures that weren’t so prevalent 60 years ago, when the current legislation was written.

Potential scenario current law vs new law
Thomas – husband to Sandra and father to 16-year-old Joshua – died unexpectedly and without a will. Thomas had purchased the family home prior to the relationship and it was registered in his name. Sandra assumed that she was entitled to Thomas’ estate (essentially the family home, valued at $1.2 million with a mortgage of $600,000, bank accounts valued at $200,000 and superannuation of $300,000) and that she would continue to live there, using the balance of the estate to discharge the mortgage.

Under the previous law, Thomas’ son Joshua is entitled to more than two thirds of the estate after his mother receives the first $100,000. His share is to be held in trust for him until he turns 18 years of age. As there are insufficient funds to discharge the mortgage, Sandra is forced to sell the family home to buy a modest unit further away from the city because she cannot afford to cover the full mortgage payment with her share of the estate, and she has to pay out her son within two years. 

Under the new law, however a person in Sandra’s position is entitled to the whole of her partner’s estate. Sandra would not have to sell the family home, and could continue to live in the family home and provide stability for Joshua.

What do you think of the law change? Have you already written your will? Does this new law encourage you to write a new will?

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    COMMENTS

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    Jim
    1st Nov 2017
    10:03am
    Does this law only apply in Victoria, I have to admit I am totally unaware of this condition, it sounds ridiculous, my wife and I made our wills out in 1975 and haven't looked at them since, all of the benefactors are still the same, we live in NSW so I am assuming nothing has changed, maybe it's time to check.
    Maggie
    1st Nov 2017
    11:50am
    This is about what happens when people die WITHOUT a Will.
    Rosret
    1st Nov 2017
    12:39pm
    Me either DIm. Lucky everyone has a Will in our family and this never eventuated.
    How prehistoric was this Victorian Law. I am surprised we haven't heard of it before this.
    Is it every State?
    KSS
    1st Nov 2017
    1:05pm
    There was a case recently where a male member of the ADF was separated from his wife and child. In the intervening months he had taken up with a new woman. No divorce proceedings were under way.

    Unfortunately he was killed on active duty. The new woman claimed they were in fact engaged and living together. Although this was disputed by the man's father and other family members, the court awarded the new woman his entire superannuation leaving the (ex) wife and child with nothing.

    I can't remember whether this was in NSW or QLD but it shows these laws are not nationwide.
    Rosret
    1st Nov 2017
    6:19pm
    Ouch KSS I am amazed. Would the wife then be able to do a property settlement and then claim what she and the children would normally be awarded in a divorce situation.
    I heard (grapevine stuff) that under the old teacher NSW superannuation scheme if the retired teacher's partner died and the teacher remarried the new partner is not entitled to inherit the superannuation.
    I wonder what the DFRDB military regulations are on this.
    OnlyGenuineRainey
    1st Nov 2017
    8:46pm
    That was a shocking case in which the DFRDB wrongly exercised powers it should never have been allowed to have. The man's will clearly left his estate to his wife and children, but DFRB isn't included in assets bequeathed via a will. It goes where the military dictate. And there's nothing the wife can do. Disgraceful affair!
    Eddy
    1st Nov 2017
    11:11pm
    Rainey, DFRDB is not administered by the military but by ComSuper. Also there is no 'residual' amount left if a DFRDB pensioner dies, the pension just stops. However a surviving spouse and/or minor children can be granted a reversionary pension, which is about 65% of the deceased DFRDB pension for the spouse and about 20% for any minor children. The question is what is a spouse under DRFDB legislation. Under DFRDB legislation it is the person of the opposite gender with whom the pensioner was co-habituating at the time of death in a marriage like relationship, providing the relationship has been in effect for at least 3 years. Being legally married to the pensioner, but separated does not entitle one to the reversionary pension. Any minor children however are not affected by this rule.
    I know it is complicated but I hope I have made it clear.
    MICK
    3rd Nov 2017
    3:05pm
    Nobody answered Dim's question as to whether the changes apply to Victoria alone or the whole of the country.
    I must admit knowing little about this area and I clearly need to start planning. Others on this website would be in the same boat so lets hope the author or a contributor can fill in the blanks.
    BrianP
    1st Nov 2017
    10:06am
    Is there any news about whether all states will change to the new law?
    Ted Wards
    1st Nov 2017
    10:49am
    If your researching the new laws as they do change from time to time, instead of looking under wills, you need to google inheritance laws.
    Gammer
    1st Nov 2017
    12:06pm
    Even if you have a will anybody who feels that he/she should have been left something can (and will) challenge it. It took 8 years for my late husband’s estate to be sorted out with at least half of the estate being swallowed up in legal bills. Even under the old rules, I would have benefitted more financially if there had been no will.....
    Pass the Ductape
    1st Nov 2017
    5:07pm
    Agree Gammer.

    Making a will these days is only the beginning and needs careful consideration!
    People need to be aware for instance, that if you have a legitimate grievance with say, one of your children: perhaps the child is grossly recalcitrant in all manner of dealing with every day issues, or you might perhaps have grandchildren who have similar issues - and you decide they do not under any circumstances, deserve anything left in your will - then NOT leaving anything to these persons could well result in a challenge being mounted in court, with quite possibly a successful outcome for the challengers.

    Best idea (if you get the opportunity) is to spend up big before you die or share out valuables or monetary 'nest egg' (if you have one) to those whom you think best deserve it whilst you are still living.

    This should fend off the sharks to a great extent.
    OnlyGenuineRainey
    1st Nov 2017
    5:37pm
    Yes Gammer. It's disgusting how the law allows greedy, selfish people to create a feeding frenzy for lawyers and overrule the wishes of testators. I can't believe people commonly exclude loved ones from wills without very sound reason, but once a will is contested, the rightful beneficiaries have already lost - because they have to choose between a year of torment and hideous legal bills, or paying ''piss off'' money to the greedy unentitled claimant. And the worst of it is the claimant doesn't even have to pay their legal costs unless they win, which of course results in lawyers for BOTH sides wanting claimants to routinely win so the claims keep on coming!

    I've heard one case after another of disgraceful unfairness in will contests. I'm sorry to hear you suffered that way. I might PM you if that's okay?
    MICK
    3rd Nov 2017
    3:08pm
    Another well balanced post Rainey. I agree with all of it.
    OnlyGenuineRainey
    3rd Nov 2017
    6:11pm
    Trying to figure out how to PM a member. I asked YLC but no reply. I know you know Mick, because you've PM'd me. Can you tell me how please?
    mogo51
    27th Nov 2017
    10:47am
    And that is exactly how the ruthless legal profession want it to be. Parasites.
    elephants
    1st Nov 2017
    12:08pm
    Yes with todays family situations & changing partners sometimes more then once. Laws do need changing.
    Its a must for all to do a will. We were told to do a Testimonal will as we have both been married before his/ her children plus 1 autistic (as he can't do a will) this will be safe guarding all .As we have also 1 child that isn't getting anything but her share goes to her children. I think its terrible that you go to all this trouble & then your will is contested. Make sure what you want is tightly covered. It seems these TESTAMENTAL WILLS ARE.
    Rosret
    1st Nov 2017
    12:45pm
    Elephants the children of a first marriage seem the most likely to miss out on inheritance these days.
    The adult leaves the estate to their partner and then the last one in the relationship to die either spends it all or leaves it all their own children.
    That's where I feel the law needs to be fixed.
    Rosret
    1st Nov 2017
    12:47pm
    Elephants if you leave one child out of your Will there is a very good chance it will be contested.
    OnlyGenuineRainey
    1st Nov 2017
    8:43pm
    Happened to me, Rosret, as the child of the first marriage. The irony is that the will did leave the money to me, as was fair and proper because half-sibling had gotten all from her father, but the greedy half-sibling contested, despite knowing she had no moral right and having full knowledge of why the will was worded as it was. She knew she was double-dipping unfairly. In the end, the lawyers got nearly all of it.
    Rosret
    1st Nov 2017
    9:46pm
    Rainey - that is so unfair. Inheritance and Wills can certainly see all the green eyed monsters awaken.
    MICK
    3rd Nov 2017
    3:10pm
    Agree Rosret. Not sure how to get this done so that it is fair but I am leaning towards a family trust to move the assets out of reach of bandits using failed laws which were never well thought out or legislated. I often wonder what the combined IQ of legislators is in this country and estates pretty well sit at the top of the list.
    Retired Knowall
    6th Nov 2017
    9:03am
    I believe you mean a Testamentary Trust. Quite different.
    Charlie
    1st Nov 2017
    12:47pm
    How is partner defined, married or defacto, gay male and female?
    KSS
    1st Nov 2017
    1:06pm
    Yes!
    GeorgeM
    1st Nov 2017
    4:10pm
    That's right, KSS, there is no discrimination here as in any area whether you are married or not, gay or straight. Also why no change is needed to the current marriage definition.
    MICK
    3rd Nov 2017
    3:11pm
    Apparently somebody you have lived with for a year, although these days a year seems to be little more than an indicative figure.
    don
    1st Nov 2017
    12:47pm
    In the Weekend Australian , dated September 2-3 2017, it says Why bother with a will if you can't have your way.? What it says EVEN if you have a will it could be contested , as if it goes to court , a son/daughter can contest it. So for argument's sake , if you left all your worldly goods to say one person ,it can be contested by another. The judge/magistrate then decides if they have a case and reverses your will to give to the other person, and there is nothing you can do. To get around this you have to pay over $20,000 .00 plus the lawyer fee of $2500.00 to make it air tight , THEN you can leave YOUR money to who ever you like eg dog cat etc. with no problems. The lawyers seem to have this tied up to rip you off. This has been my experience, in Western Australia.
    OnlyGenuineRainey
    1st Nov 2017
    11:06pm
    You can't make it air-tight in NSW, don. It's not possible. And mostly a contest doesn't get to a judge. Once there's a contest, the rightful beneficiaries are screwed. The courts put a gun in the hands of greedy claimants and say ''Extort for all your worth. Have fun!'' The executor's lawyer says ''Pay them off, or suffer a year or more of hell and let the lawyers take all. You CANNOT win, no matter what is right or wrong, and nobody gives a fig what the testator wanted or why. If the greedy claimant can lie effectively claiming ''need'' or ''entitlement'', they get the booty. If not, the lawyers get it, unless the executor gives in to their demands early and just hands it over. It's a stinking law that caters to greed and selfishness and feeds unconscionable lawyers whose only care is for their own bank accounts.
    Sundays
    2nd Nov 2017
    8:57am
    Rainey, people who contest wills aren’t always greedy. Sometimes wills are just unfair. I have a friend who did everything for her parents, but they left their estate to their son. They wanted to keep the money in the ‘family’. Nothing for the daughter. Was this fair? How do you think she felt. She was advised to contest, but the brother gave her a token amount to make her go away.
    OnlyGenuineRainey
    2nd Nov 2017
    5:54pm
    Sundays, I suppose it does happen, sadly. But the system is heavily abused and I believe the majority of claims are frivolous and malicious, motivated by greed and selfishness. Sadly, the system doesn't serve either the rare genuine claimant or the defendants against wrongful claims. It merely lines lawyer's pockets! Yes, mostly defendants do give claimants money to go away, because it's just too costly to defend. I don't know why she'd accept a token amount though, because unless there is a very strong reason why you shouldn't be entitled to inherit, the claimant holds all the cards - in NSW at least! Unless there was very strong evidence of disentitling conduct by the girl, I can think of only one reason why the courts would rule in the brother's favour, and that would be that the girl's financial situation was much healthier. That shouldn't be a reason to discriminate against her, but the courts do focus more on relative financial status to the exclusion of most other issues. And if the girl had a strong case, she could have pushed for a generous settlement and the brother would risk a great deal to hold out against her demand.

    I'm sure I know how she felt. And the saddest part is that these situations tear families apart irreparably. There is no coming back after a sibling sues for a bigger slice of the inheritance.
    MICK
    3rd Nov 2017
    3:12pm
    Think of a Trust structure don. I suspect that is the way to secure YOUR wishes.
    don
    3rd Nov 2017
    8:36pm
    Mick my first post where I quoted $2500 for Lawyer and $20,000 is for setting up a trust to make it air tight. I Paid for $400.00 for this advice , About twenty minutes worth, what a rip off. I do not see why a person has to go to this length to give leave your money to whom you want. A normal will is up for challenge and can go anywhere. As per other replies I know of one case where the property worth a bit was left to the son , he is well off through being frugal , his sister a druggie ,got nothing . She forged a new will , and was proven but because she had nothing she got the property. To me she should have been in the clink. I have no time for the lawyers.
    OnlyGenuineRainey
    4th Nov 2017
    11:10am
    Yes Don. A friend of mine supported and cared for his father for 25 years and his sister, a drug addict, never made contact once. Broke the father's heart. Dad left everything to son, as repayment of all he'd contributed to Dad's welfare. Sister challenges, says ''I'm a drug addict so I'm needy''. Got the lot! Sick judge!

    Case 2: Mother of one child was widowed and remarried. Second husband was mean and never supported family so they lived in the house first hubby had bought and on money left by first hubby - including trust fund left to his child (Child 1). When Child 2 (of second marriage) grew up, her father gave her heaps of money and then she inherited all her father's money when he died. Child 1 got nothing from her step-father. Mother left all to Child 1 stating in her will that it was fair because trust fund and everything else father left had been shared with Child 2 but none of her father's money was shared. Child 2 claimed ''need'', despite owning a $1 million water-view mansion. Courts gave it all to Child 2.

    Case 3: Contestant challenged will claiming need due to severe disability, including being confined to wheelchair. Said she needed a live-in carer. Wanted money to build a fancy house. Lawyer for executor said ''Okay. We'll pay a generous settlement, but set up a Special Disability Trust to put it in so it's not mismanaged and is there for future needs.'' Lawyer for claimant said ''Oh no. That's no good. Client doesn't qualify for Special Disability Trust''. Lawyer for executor said, ''Oh. Thanks for confirming your client's Affidavit is a pack of lies then.'' Court gave the money to the claimant anyway. Said it accepted she probably was needy, even if she did lie in her application. She should have been charged with perjury!!!

    A friend who acted as executor of a will recently told me her lawyer billed her $1200 for re-drafting an Affidavit because HE (or his secretary) spelled her name incorrectly! $80 for reading an email she sent telling him he'd left out a vital clause in a settlement agreement and $800 inserting the clause. It was a clause he should have advised her was essential, but she had to tell him to insert it!
    Retired Knowall
    6th Nov 2017
    9:10am
    Cost of setting up a Testamentary Trust.
    Based on asset values:
    3.85% on the first $100,000
    2.75% on the second $100,000
    1.65% on the third $100,000
    0.55% any amounts over $300,000
    Minimum fee of $220
    Trust management 0.77% per year on value of assets held
    (excluding the principal place of residence)*
    Account keeping $132 per year
    Investment 0.11% per year of value of assets invested in
    NSWTG investment funds
    OnlyGenuineRainey
    5th Dec 2017
    8:19am
    Retired Knowall, I spoke to a lawyer last week who said that is absolute nonsense. A correctly set up Testamentary Trust costs very little to establish and NOTHING to administer. I am awaiting further information from him and I'll post again when I know more, but he assures me that Testamentary Trusts are not expensive at all.
    KSS
    1st Nov 2017
    12:59pm
    Death and wills bring out the best and worst in people.

    These changes are for Victoria and only if you die without a will. So make one. At least then there is something to 'fight over'. And if you do make a will, it needs to be reviewed over time as things do change.
    Crimmo
    1st Nov 2017
    1:19pm
    Your current law answer to the quoted scenario is misleading, leading to confusion. In the article you state that under current (old) law the spouse of the intestate is entitled to the personal chattels, the first $100,000 and one-third of the balance of the estate. In your potential scenario you state that under current law the child would receive more than two-thirds of the estate. Confusing. We are to assume that the house in the intestate's sole name would go to the surviving spouse in accordance with other cohabitation laws, or whatever you like to call them, as you say that she would have to sell the house. So in the scenario, Sandra would receive cash and superannuation totalling $233,333.
    Florgan
    1st Nov 2017
    1:42pm
    Who made up this idiotic law.
    Please give me strength to congratulate the person who changed it !!!
    Old Geezer
    1st Nov 2017
    1:48pm
    Only one thing to do and that is spend the lot and have the state pay for your funeral instead.
    MICK
    3rd Nov 2017
    3:15pm
    Your normal greed Geezer. You need to develop some humility and try to find your soul again. Life has clearly crushed you and your take is sad mate. You can be better than that!

    1st Nov 2017
    4:30pm
    Its rubbish.
    The old law was much fairer
    I dont have a partner, but even if I did , I wouldnt want the greedy b%$ch to have all of my assets . SOme if not all should go to the kids , surely
    OnlyGenuineRainey
    1st Nov 2017
    5:30pm
    And what if there are minor children and their mother can't support them and maintain a home for them, Raphael?

    I know of a case where a woman left everything to her husband knowing he would need it to support their minor children. Her mother was furious and claimed it should have been put in trust for the kids. But what good would that do if there was no money to feed, cloth, house and educate them?

    As for the ''greedy bitch'' comment --- my goodness! Thank heavens you don't have a partner with that nasty attitude. Most men love and appreciate their partner and want them to be comfortable after their death, acknowledging that without their partner's love and support, there would likely be far less to distribute anyway.
    Anonymous
    1st Nov 2017
    5:54pm
    If there are minor children that are his then he should set aside funds and invested in a trust to be used solely for kids expenses, with the remaining bulk of it then going to the kids when they are adults.

    The wife should be working anyway. Not waste away the hard earned money of the deceased
    How many families have more than 2 kids these days
    Rosret
    1st Nov 2017
    6:29pm
    Raphael this would be the wife who you have spent your life together sharing absolutely everything and who probably cared for you in your dying days.
    She will need somewhere to live and probably still help her children with the grandchildren until she too passes away.
    When she finally dies her Will will undoubted leave all the estate to your children in common.
    Why in the world would you want to leave your wife bereft?
    don
    1st Nov 2017
    11:19pm
    Raphael, you sound bitter and twisted. When you die the money should go to your wife but not the ex. If your wife dies then what is left goes to the kids. After all , we all work hard for the benefit of the family. What gets my goat is if one of your kids get divorced and you leave money to your kid that ex has open slather on the money, that is why I do not want her to have one cent, the grand kids would get from the father eg son. That is why they say why bother with a will if can't have your way.!!!
    MICK
    3rd Nov 2017
    3:16pm
    Geeze Raphael...I thought Malcolm might have been your man. Chuckle..... Sorry, couldn't help myself.
    Anonymous
    3rd Nov 2017
    6:15pm
    Mick that country’s propert settlement laws are rubbish already
    No need to make it worse with stupid inheritance laws
    You should be able to leave all your money to whoever you want
    If you feel the wife should get nothing , that’s your choice
    MICK
    3rd Nov 2017
    8:09pm
    Ok, I'll be sensible now.
    I agree up to a point. What I don't and won't agree to is people who use their will as a weapon of spite and hurt to inflict on those they have had a falling out with.
    My take: look after the partner but protect the rights of your children to inherit some of the labours of your life. At the top of my list is PARTNERS who want to live it up rather than use an inheritance to make a life. i could have done that for myself but choose to live a meagre life as much as possible so that I can pass on what I have created through a heap of blood, sweat and tears.
    Pardon me for getting on the soap box. I have a passion to distribute my income where I see fit as long as I do this logically and for the benefit of my descendants. You?
    Anonymous
    3rd Nov 2017
    11:02pm
    I will spend what I need to spend in retirement.
    The house and what investment is left over will go to the kids

    Lucky the ex bitch will get nothing unless they change the bloody laws again
    OnlyGenuineRainey
    4th Nov 2017
    6:56pm
    The last man I heard talk like that had lived in his wife's house for 15 years and his wife worked full time to help pay child support to the kids of the previous marriage as well as paying half the bills for their own family. Some men lack the ability to recognize a woman's contribution. It's usually substantial!
    OnlyGenuineRainey
    1st Nov 2017
    5:31pm
    Some common-sense at last! Next step is to stop overruling the wishes of the deceased who did make wills. This nonsense system that encourages will contests that line the pockets of lawyers and almost always result in outcomes that would rightly horrify the testator - who doubtless had very good reasons for declaring their wishes as they did - is not acceptable. I can't accept that there are more than a tiny handful of people - if any - who would deprive their offspring of a share of inheritance without very good cause. To allow greedy, self-serving individuals to challenge wills without even incurring legal costs unless they win (which, of course, creates incentives for lawyers on BOTH sides to ensure they do, so everyone gets paid!) is disgusting.

    A will may be important, but for many it's nothing more than an invitation to a selfish and unentitled party to create a feeding frenzy for lawyers. It would be good to see a lot more of the common sense legal changes reported here, but I won't hold my breath.
    Sundays
    2nd Nov 2017
    9:04am
    I prefer the French system where some of the Estate must go to your partner and children first. You have an obligation to them. Then you can leave the rest to whoever you want including more to some of the children. Despite what you think, lawyer friends tell me people leaving children out of wills is quite common. Many times, it’s just spite, no good reason.
    OnlyGenuineRainey
    2nd Nov 2017
    5:58pm
    I wonder how much lawyers really know about the reasons parents exclude children from their wills? I suspect most parents would be reluctant to expose the painful truths about their children's hurtful treatment of them. I'm sure many children are left out of wills, but often with very good cause - cause that is far too painful to reveal and that a parent would certainly not want to disclose in a document that becomes public.
    MICK
    3rd Nov 2017
    3:17pm
    Fair comment Rainey. Maybe one needs to be very very explicate in one's will. That way the courts cannot mislead the judge as to why a person does what he does.
    OnlyGenuineRainey
    3rd Nov 2017
    6:22pm
    Explicit doesn't help, Mick. My mother made an Affidavit to avoid being explicit in a document that would become public. She spelled out her wishes and reasons in intricate detail. Two lawyers could have sworn to long conversations with her in which she expressed the same sentiments expressed in the Affidavit. All meant nothing.

    The courts don't mislead the judges. Most matters don't get to the judge because of the stinking system and the costs, and those that do are deliberately decided on the wrong criteria. I don't know if judges are fools or there is a hidden agenda, but usually the judges rely almost solely on means tests. He who has the least gets the prize! In two cases I know of, the claimant won because (a) was a drug addict and therefore ''needy'' and (b) had assets hidden abroad under another name and lied about having nothing. In both cases the said claimant had abused the testator over an extended period and robbed them, and in both cases the Testator made that clear in an Affidavit and said because of that, they didn't want the claimant to have anything. They got it all anyway, and in both cases siblings who had cared for the parent extensively over a long period of illness and had supported the parent financially with undocumented loans after the claimant robbed their own parent ended up getting virtually nothing.
    MICK
    3rd Nov 2017
    8:11pm
    I believe a Family Trust is the way to go. Pretty hard to challenge.
    OnlyGenuineRainey
    4th Nov 2017
    10:54am
    True, but they create a nightmare for anyone who ends up needed a part aged pension. Guess if they get to that point, they might as well just spend everything, but it's hard to spend the family home without making yourself homeless. Reverse mortgage, perhaps? And what do you spend it on? By the time you can be confident you won't ever need it, you are usually too old to be bothered with parties, cruises, or fancy clothes!
    KB
    1st Dec 2017
    1:33pm
    RaineyI agrree with you that wills should not be over ridden,unless you divorce remarry as a widow or widower Better off being cash poor.
    Nan Norma
    1st Nov 2017
    9:59pm
    Its time limits were made on what lawyers can charge. My sisters and I were changed $6000 by our lawyer to execute the simplest of wills. I realized later that he was actually charging us each $2000 each. An absolute rip off.
    don
    1st Nov 2017
    11:23pm
    Nan Norma , you can get your accountant to do your will for roughly $800.00 and is as legal as a lawyers one eg not much chop.
    Nan Norma
    2nd Nov 2017
    3:14pm
    Don, The lawyer was not writing up the will. He was executing the will. I think $800 is way over the top too.
    OnlyGenuineRainey
    3rd Nov 2017
    6:10pm
    Execution costs might have included probate costs, Nan Norma. That can push the cost up and it's outside the control of the lawyer. But you are right. Legal fees are way too high and totally unjustified, and should be reigned in. But if you think you were ripped off, have a thought for those who have to defend a contested will! OMG! And unconscionable lawyers say (privately of course) that they hate helping people with estate planning because good planning reduces the potential of will contests, and it's those lovely will challenges that make the lawyers really rich!
    KB
    1st Dec 2017
    1:39pm
    Nan Norma I think that you have been ripped off. Ring the Law Society in your state to check what lawyers can charge.
    MD
    2nd Nov 2017
    9:04am
    Most can recount some story either from personal experience or heard related by others. As we age so the number of these instances increase, more so nowadays - or so it seems - and could be interpreted in a number of ways.
    Self justified beneficiaries; those excluded, slighted or discounted by the testator can, do and will forever be warmly welcomed by the legal fraternity whose sole purpose, for moral and ethical reasons of course, is to protect the interests of the client. In the process - that both parties stand to make (read take) a buck or two - is beside the point --- isn't it ?
    The testator's wishes and directions can equally be motivated to exclude or deprive any party, family member(s), - past, present or unknown - for any number of reasons and justification for their doing so often becomes the basis for a claimant challenge. In drawing a will a person is presumably trying to exert some control over those 'nearest and dearest' and motivation - whether for love or conviction - often becomes a matter of interpretation. Courts of dispute are nowadays bogged down with claimants that 'think' they have better understanding to interpret what the testator was 'thinking' when drafting the will. Woe betide the beneficiary that scores more than 'ME' - 'I'm more entitled than you ever were'.

    Personal gain and covetousness, or more specifically money hunger seems to be a motivating factor in society regardless of whether considered entitlement, right or expectation. The greater the sum in question is often reflected by the number of claimants and/or the scale/quantity/quality of the legal eagles - and their commensurate fees. I seem to recall reading a recent article that indicated some states are reviewing the entire process relative to Wills - this as a result of the back log of pending 'claims' listed for court haering. A good many of the challenges brought before courts are simply not worth the establishments time and effort, yet to the claimant it may represent a fortune. Little do they realize.
    Mediation seems to be the logical way to go, whereby all/any parties concerned meet formally, decide beforehand how costs are to be met and thereafter haggle over the remains. Failing to reach agreement the case is then submitted for adjudication, adequate funds permitting. To cover costs, this would be a classic instance to either stump up your own money (which by agreement can be proceeds from settlement) or shut your mouth.
    OnlyGenuineRainey
    2nd Nov 2017
    5:44pm
    I sure hope many states are reviewing the entire process relative to Wills, MD, because it's an utter disgrace. Neither lawyer cares about a fair or just outcome. They want the claimant to win, because if claimants don't win, there are fewer future claimants. The goal is, by offering ''no win/no pay'' to contestants, and giving them a loaded gun to level at the executor, who hasn't a prayer in defence no matter how disgracefully dishonest the claim, so both lawyers profit handsomely and they can shout about how those left out of wills can achieve ''justice'', which drives more and more claims. No wonder the courts are clogged!

    I wrote to an AG suggesting a series of reforms:
    (1) inviting Executors to request immediate dismissal of claims that are dishonest or totally baseless. Currently, in NSW, the Executor is compelled to remain silent other than to reveal the estate financials and the financial positions of the other beneficiaries until around $50,000 has been spent to get past formal ''settlement conference'' stage. Only at trial, which is rarely reached due to costs, can the defendant actually respond to claims of entitlement or present evidence of dishonesty or disentitling conduct. I suggested that conduct and integrity should be the FIRST issue examined. Relative financial standing should be totally irrelevant where there was disentitling conduct toward the deceased, a dishonest or clearly malicious claim, or the testator's reasons can be readily and clearly evidenced.
    (2) that issues around smaller estates be settled in local courts rather than compelling people to travel long distances and spend up big on Supreme Court representation
    (3) that in some circumstances, witness Affidavits be accepted without requiring witnesses to present in person. Currently, the costs of presenting witnesses precludes doing so, and therefore valuable information is never exposed.
    (4) all disputes be referred first for formal mediation at which the parties must be present in person. Currently, settlement conferences are held with lawyers meeting in the hallway and neither party to the dispute knowing what is being said. They are nothing more than cattle auctions - bartering back and forth with the aim of meeting somewhere in the middle, but with no regard at all for the issues that ought to be the focus.
    (5) the focus on competing financial status of beneficiaries and claimant be changed to a focus on upholding the testator's wishes unless there is very strong reason to override. The current focus on competing financial status is clearly WRONG. If a claimant can evidence genuine need that clearly should have been considered by the Testator, or that the Testator may have meant to accommodate but failed, then certainly financial standing of all parties is relevant. But where the claimant is NOT suffering genuine hardship, merely being poorer than another heir shouldn't increase entitlement. And financial hardship should not entitle someone to inherit if their conduct was genuinely disentitling. Testators should have the right to exclude abusers, thieves and fraudsters if they so wish, regardless of finances.
    (6) that no-win/no-pay contracts be required by law to contain a clause that compells the claimant to pay the legal costs of both sides if a claim is evidenced untruthful, frivolous or malicious. This appears to me to be the only area of civil litigation where frivolous, malicious or dishonest claims are tolerated. There should be a high price to pay for abusing the legal system.

    Don't know how much attention the AG will pay. I won't hold my breath.
    Retired Knowall
    6th Nov 2017
    9:13am
    Like MOST people on this forum - probable NONE.
    Drewbie
    2nd Nov 2017
    2:42pm
    Having closely read about the changes to Victorian inheritance laws & the hypothetical scenario re - Sandra: I believe it is a " good change " for the better & far more equable for surviving next of kin & any children that resulted from the relationship. It is grossly unfair that a wife, husband, defacto partner under previous inheritance law would not receive a decently fair return for all the immense personal input they have willingly given for many years; after their long-term partner dies without leaving a will.

    It's just like investing a substantial portion of your hard-earned. You worked for it, sacrificed valuable time & effort. You invested into various ways for a fair return of interest, only to be told upon maturity that there'll be no forth-coming interest & your principle sum will be slugged with a hefty fee, just for the privilege of investing it in the first place.

    It is only fair & honorable that dusty, antiquated laws ( Inheritance in this case ) are updated to relevant 21st Century expectations. And there are a plethora of Laws / Acts that badly require such action. As I said earlier, I believe this is a change for the better as the " next generation of kin " won't be missing out either.

    Cheers Everyone.
    JAID
    4th Nov 2017
    6:38pm
    Hard as it may seem, assuming the surviving spouse will still maintain minor offspring of the relationship it seems to me that the children need not receive anything. Certainly something could be devoted to their up-keep and education ensuring they are not left totally high and dry but providing them a significant percentage of the estate already impacts the ability of the surviving partner to maintain the family in something of the way it was. No child should have a claim on their parent's wealth except as it may related to their maintenance and education as a minor. If the parent wanted it another way they could have left a will. On the other hand, the remaining spouse is part of the family decision-making core. If you die intestate that is the component which will continue your care for your offspring until in reaching the age where they can fully run their own affairs they could very well be on their own financially anyway.
    Radish
    7th Nov 2017
    9:36am
    Take out "insurance bonds"....the amount will go directly to the person you nominate as your beneficiary and has nothing to do with your Will. It will be paid out no questions asked.

    My father did this so I know what I am talking about as I was the beneficiary.
    srs21
    7th Nov 2017
    12:09pm
    People..... you should always re do your will every so often.
    Fair Dinkum
    12th Nov 2017
    8:04am
    We need a royal commission into the lawyer society and Lawyers excessive charges because they are the only ones that win in will disputes and most other cases that require a lawyer particularly in child custody and access cases . Most of them are leaches and prolong cases as much as possible to feather their own nest They are even worse than most of the Politicians who learn their trade from being a lawyer
    OnlyGenuineRainey
    7th Dec 2017
    4:38pm
    Couldn't agree more, Fair Dinkum. They are a greedy, unconscionable lot who charge far more than could ever be justified even in a most generous assessment, and deliberately act to drive costs up rather than in the interests of their clients.
    Hairy
    7th Mar 2018
    6:25pm
    Couldn’t agree more,divorce settlements just the same drag out,politicians on the other hand money for an acting career at canberra
    KB
    1st Dec 2017
    1:20pm
    Parents should discuss with their children the terms of their will. Or even portion the amount of what they intend to give before departing. This may stop some of the bun fighting after the person is gone, I know when a house is sold from a deceased estate then each sibling is given an equal amount by the trustee or lawyer.
    OnlyGenuineRainey
    5th Dec 2017
    8:21am
    No, KB. When a house is sold from an estate, the distribution is decided according to a will, or by government authorities if there is no will. There is nothing to suggest each sibling will get an equal amount, unless the will so specifies. And even then it can be challenged.
    don
    1st Dec 2017
    2:24pm
    Radish , what are insurance bonds please and how does it work. A friend of mine ,his wife died and apparently , his two children had to sign a form to say they were not interested in their share of the inheritance. That is apparently on death of a spouse his two kids would have been able to 25% of the estate and he the other 50%. This would have given him a hard retirement if they had. It is totaly wrong.
    don
    1st Dec 2017
    2:25pm
    Radish , what are insurance bonds please and how does it work. A friend of mine ,his wife died and apparently , his two children had to sign a form to say they were not interested in their share of the inheritance. That is apparently on death of a spouse his two kids would have been able to 25% of the estate and he the other 50%. This would have given him a hard retirement if they had. It is totally wrong.
    Radish
    31st Jan 2018
    6:28pm
    Read all about them here. I only wish I had keep up yearly contributions to mine. I just put in a lump sum and did not do so. You do not have to do it but it is good if you can.

    http://www.smh.com.au/money/investing/insurance-bonds-are-the-perfect-investment-for-grandchildren-20160512-gotd6p.html
    Radish
    31st Jan 2018
    6:30pm
    My late father left me an insurance bond and it was given to me totally separate to what I received in his Will.

    No one can contest it either...as I was named as the beneficiary.
    OnlyGenuineRainey
    5th Dec 2017
    8:30am
    The change that is desperately needed to inheritance law is to BAN NO-WIN/NO-PAY will challenges. I thought it was reasonable that people with limited means could challenge a will on that basis until a lawyer explained his reasoning to me. He's right, of course! If the contestant has a reasonable claim, they will win enough to more than cover the legal costs. If they don't have a reasonable claim, they shouldn't be able to proceed.

    Allowing no-win/no-pay agreements simply means people with no fair claim can proceed at no cost or risk, and given the way the law currently works the defendant ALWAYS loses. There is no way for them to win. They cop legal fees, and even if they prevail and get a costs order against the claimant, they still lose as costs orders only cover about 2/3rds of the actual cost of defence. But almost always, they will be bullied into offering ''piss off money'', because it is far cheaper and less stressful. In many cases, executors are not beneficiaries and really don't care about defending the will aggressively, but just want to avoid work and stress. Lawyers for claimants who enter no-win/no-pay agreements have to win, even if they discover clear evidence that their client is a lying, cheating, greedy fraudster. So they ignore their professional obligation to act ethically fairness.

    Banning no-win/no-pay agreements would relieve the current very expensive burden on the court system and make everything very much fairer.

    The other change that is needed is to legislate that claims under $250,000 must be heard in a district court - where costs are much less - and all claims must go to independent mediation before court action can commence. When the claim is lodged, the defendant should be invited to present any evidence they have that justifies instant dismissal, and baseless claims should be thrown out. And there should be massive penalties for lying about need.
    Blondie
    22nd Dec 2017
    12:10pm
    Superannuation is not part of your estate.
    Radish
    7th Jun 2018
    1:37pm
    If anyone wants to leave a certain amount to someone and not have it part of their estate (it will go directly to the person nominated as the beneficiary) take out an Insurance Bond.

    This happened within my own family and there was no problem. Was treated separate from the Will and went directly to the person even before the Will was settled actually.
    Radish
    16th Mar 2018
    6:11pm
    Great idea! The children will get their inheritance once the surviving spouses passes on. That is how our wills are structured.
    Oars
    21st Mar 2018
    11:20am
    This is totally trumped up law that defies common law. Such
    local yokel" "laws ????" should be sent to the shredder. How dare some legal beagle assume that this law will help all of the possible scenarios. This is another example of the lawyers considering themselves above the rest of us. Lawyers and Banks have become draconian monsters, playing with other people's future.
    Oars
    21st Mar 2018
    11:25am
    Again, I think these lawyers are merely trying to drum up busines to fleece the poor unwary. They charge for the will, then drag out more fees for the execution of the will. Have you ever witnessed the reading of one such will ? It is like attending a death sentence to the surviving. Lawyers are robbers with a smile !!!
    Joy Anne
    16th Apr 2018
    1:06pm
    I would hope this applies to ALL STATES not just Victoria. If that is the case then yes it is good that the wife or ex wife get the entire super, bank, and everything.
    That is disgraceful for the courts to rule that the new woman got everything when he should have been supporting his ex wife and son.
    mazzat
    8th Aug 2018
    11:28am
    For how long is a will considered current. For instance if a will was written 11 years ago and circumstances have not changed, is it still valid?


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