Will sisters’ good intentions lead to will war?

Lawyer Rod Cunich tells how best to protect will from excluded grandchildren.

Will sisters’ good intentions lead to will war?

John is concerned that his mother-in-law’s will may be contested by family members who have been excluded. Can estate planning lawyer Rod Cunich help?

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Q. John
My mother-in-law Marjorie passed away at the age of 97 – so it really was a celebration of her life. Her husband died 20 years ago.

There are three daughters in the family and when the eldest one passed away in 1997 Marjorie made the other two executors and also sole beneficiaries of her will.

Marjorie had eight grandchildren. Three of these were children of the eldest child (deceased) who she excluded from her will.

She said at the time that she did not want any money going to those three grandchildren, and that the money was solely for her ‘current’ (surviving) daughters.

The daughters discussed giving $50,000 to the eldest grandchild (the eldest child of their deceased sibling). He is expecting to gain an inheritance from this estate. One of the executors received a text message from him to that effect and stating that one of his siblings was in some sort of financial debt and that he would loan him the money pending an inheritance.

1. Would there be an issue in giving him $50,000 as a goodwill gesture?

2. Could he still contest the will, despite his grandmother being adamant that the estate was to be left to the surviving daughters.

A. John, it can be done in several ways but perhaps best to have all parties (executors and named beneficiaries) to execute a family settlement deed in which they agree to have the estate pay the money to him on a no-obligation basis and include his agreement not to make any further claim on the estate.

This way, it can be done safely and you achieve some goodwill across the family, although the other children of the deceased may complain.

Whether any of the deceased’s children have a legal claim on the estate is another issue. I have addressed this issue in my response to other readers.

Rod Cunich is a lawyer with more than 30 years’ experience who specialises in estate planning. If you have a question for Rod, simply 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 – legal advice should be sought.





    COMMENTS

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    14th Aug 2019
    11:15am
    Whilst the above appears to be sound advice and bearing in mind that the opinion is given by a qualified person my two cents worth is from a lay person with a good memory. Previous discussions in this forum have given a strong impression that any will can be challenged through the courts by any family member (close or distant) who feels that their omission was an oversight by the testator.
    TREBOR
    14th Aug 2019
    11:16am
    Been through all that... disgusting ....

    My kids, all two, get half each - story ends. Anyone who argues about that is rocky in the head...
    TREBOR
    14th Aug 2019
    11:18am
    My mother had nothing - my father left me his worst wishes (thank God - any rejection by that mad lot is a good rejection) - I wanted nothing from them anyway, and was frankly astounded to even have the issue discussed with me. Never even considered challenging it... wouldn't be bothered.
    Jenny
    14th Aug 2019
    11:48am
    Does anyone know why the deceased lady didn't want these grandchildren to benefit from her estate? It doesn't seem a normal action to refuse them anything. Certainly not something I could do. Perhaps there was a compelling reason, e.g. family tensions, worry about misuse of the money? Maybe they need to investigate the circumstances.
    Anonymous
    14th Aug 2019
    11:59am
    And perhaps it's none of our business how another person chooses to distribute their estate.
    Jenny
    14th Aug 2019
    12:44pm
    Very true Old Man.
    JAID
    14th Aug 2019
    1:41pm
    Certainly agree with that OM and Jenny. What people want to do with THEIR wealth should be no business of anybody else.

    There could always be an argument as to whether it is theirs or not but that is not the cause of the usual greed.

    It is staggering that any seem to think they 'deserve' something simply due to being related to someone. Yet many do think this way.

    It is easy for me to say though since our parents are/were the most even-handed you could think of. They attempted to break estates evenly, even including a clause covering the demise of a child and the transfer of that to that child's successors. They may end up not getting the balance perfect but that is neither here nor there for people who trust in their judgement and have always been aware of their care.

    I have known couples who have agreed in advance as to the way the survivor will distribute the estate and those would not have been disappointed in the result. In my case the order is, Spouse first then Children leaving then the children or their estate to deal with any grandchildren.
    Farside
    14th Aug 2019
    11:25pm
    JAID nails it with comment "It is staggering that any seem to think they 'deserve' something simply due to being related to someone. Yet many do think this way."

    The very notion of family entitlement flies in the face of the deceased's right to dispose of their estate or fortune as they see fit. If the deceased wants to cut off those dependent upon them while alive then so be it.
    Not Amused
    14th Aug 2019
    12:46pm
    It's my understanding that a parent can do whatever they wish with their money, providing they make provision for a surviving spouse. I believe people don't have to bequeath anything to children unless such children are, at the time of the death of the parent, financially and/or physically dependent on such parent. Grandchildren have no legal claim whatsoever on grandparents' estates unless clearly outlined in the deceased's will. A grandparent can leave $$$$ to one grandchild, perhaps one who has been very involved in such grandparent's life, and only leave a token sum to all the other grandchildren. Some kids can claim they have been treated unfairly but it costs a motza to contest a will, and this is why I think people should clearly set out in their wills the reasons for how they are distributing their assets.
    Jenny
    14th Aug 2019
    12:51pm
    Yes, that would be very helpful, and could prevent unwarranted claims.
    Greg
    14th Aug 2019
    1:30pm
    I believe it's called a "Deed Of Family Arrangement", basically if the beneficiaries agree the monies can be distributed differently to how the will actually states.
    rtrish
    14th Aug 2019
    7:00pm
    $50,000 is a hell of a big goodwill gesture! But I’m wondering why she didn’t make clear in the will her reasons not to include some. That could have been helpful.
    TREBOR
    14th Aug 2019
    9:32pm
    .... and I leave to my beloved grandson, Bubba on Cell block B and doing time for repeat drug offences, robbery, and general mayhem, the sum of five pounds in order to procure his comic books.....