Will stepfather have the final say with his new will?

Can siblings contest new will drawn up by stepfather after the death of their mother?

Will stepfather have the final say with his new will?

Can a stepfather’s new will, drawn up after the death of his wife – excluding her children from any inheritance in favour of the stepfather’s only child – be contested? Estate planning lawyer Rod Cunich has the answer.

••• 

Q. Brent*
My wife’s mother and stepfather each had a will leaving their assets to one other. They were married for over 20 years. When my wife’s mother passed away, the stepfather made a new will and left everything to his only son. My wife and her siblings were left out altogether. Can this be contested when he passes away?

A. Brent, unfortunately, this scenario occurs quite often and in most situations the children end up missing out. It is difficult to challenge a will in these circumstances unless your wife and her siblings can prove there was an agreement between their mother and stepfather that on the death of the last of them the estate would be divided between children and stepchildren in a particular way. 

However, you will need to see a ‘family provisions’ legal expert who can review all the circumstances and advise if your wife and her siblings have any chance of success and, if so, when to commence action. 

It would be best to find out now so you know what is possible and not miss an opportunity that may be there. If there is no opportunity, then at least your wife and her siblings will know and not stress over an impossible outcome. 

* Not his real name

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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    patti
    13th May 2020
    10:17am
    This happened to me, my father's third wife died several years after he did, and she passed on pretty much everything to her only son. I did get a carriage clock that had belonged to him. But nothing else of value. I was pretty upset, but as they lived in Europe to was too hard to contest the matter.
    skinner
    13th May 2020
    10:37am
    If this second will is fine, it is so bloody WRONG! He lived with his wife for 20 years & now has said 'to hell' to the other kids. So WRONG even if the law doesn't look at it thus. I wouldn't put any reliance on the son sharing.
    skinner
    13th May 2020
    10:37am
    If this second will is fine, it is so bloody WRONG! He lived with his wife for 20 years & now has said 'to hell' to the other kids. So WRONG even if the law doesn't look at it thus. I wouldn't put any reliance on the son sharing.
    On the Ball
    13th May 2020
    11:06am
    Funny how so-cslled normal people change to greed when wills and estates are mentioned.
    Its almost as if they are anticipating a death so they can get their hands on the proceeds!
    What belongs to someone else is their property to do with what they want.
    Yes, there are nasty people who marry someone well-off, just to get their hands on the assets, but that's their problem. Sinking to their level (relying on an inheritance) is just as bad.
    "Can't wait for Uncle Ned to die so I can get that......"
    "We cant afford a holiday!" "But my mum is not going to live forever..."
    ozirules
    13th May 2020
    11:22am
    here we go again, people not agreeing with how some one disposes of their assets. Outsiders may believe it's wrong but so what. We dont know all the circumstances and even if we did we cannot police others to live by our own moral compass.
    Youngagain
    13th May 2020
    11:50am
    The problem is that it's a very lucrative business for the legal profession overturning wills, so they encourage people to challenge wills, and they then make decisions without any regard for the deceased's wishes and without any genuine knowledge of why the will was made the way it was. It's a dirty and disgusting business, and often it results in nobody except the lawyers getting a deceased's life savings.
    roy
    13th May 2020
    1:06pm
    Youngagain. 99% of lawyers get the rest of them a bad name!
    ozirules
    13th May 2020
    1:16pm
    Spot on Youngagain. Have you noticed what a litigious society we are now that lawyers can advertise no win no pay. Any dickhead can take a shot at you knowing they have nothing to lose so we have greatly increased liability insurance and everyone frightened to take responsibility for their actions. Contesting wills is another no risk venture as the costs to take legal action are borne by the estate's assets and not by the actioner.
    Eddy
    13th May 2020
    10:41pm
    ozirules you have to be careful with 'no win, no fee' It does not necessarily mean you will not have anything to pay. There are fees payable before you get to court then if you loose you may have to pay the other sides costs. You just do not have to pay a fee to your lawyer.
    Youngagain
    14th May 2020
    1:51pm
    Eddy, no win, no pay means just that in most will disputes. The problem is that the estate almost always loses because if the claimant loses and has to pay costs, that would discourage people from contesting in future. So even the lawyer for the estate wants the claimant to win and will not defend aggressively.

    You must have seen the extent of advertising on TV and in newspapers, urging people to contest wills? Nobody urges anyone to defend the contest and nobody offers the defendant free help to defend. No. The estate is seen as a free-for-all pot of gold for the claimant and the lawyers.

    The estate is not even allowed to present any defence until after a 'settlement conference' (in NSW anyway). And the conference is a total farce because it basically consists of the two parties going into separate rooms with their lawyers (at hideous expense) and the lawyers meeting privately in the hallway to discuss how much the claimant will agree to accept. The claimant literally holds a loaded gun, because if the executor fails to make an offer the claimant will accept, the matter goes to court at the estate's cost and at least $100,000 disappears from the estate. Plus the executor suffers 18 months or more of stress and imposition. So ultimately most executors simply buy the claimant off, and the named beneficiaries lose out. It's disgusting!
    Jenny
    13th May 2020
    1:29pm
    It seems sad to me that this has occurred. I know that the father's own biological child would be "entitled " to the major share of the inheritance, and we don't know the circumstances of the family dynamic, but it seems uncaring of the father to leave his stepchildren with nothing at all. I hope I wouldn't do that.
    Jenny
    13th May 2020
    1:37pm
    And in addition, the mother would have brought material contribution to the family, and half of the overall value would have belonged to her. The arrangement that I have made is that should I die before my husband, any liquid assets in my name will go to my children, and joint assets to my husband. Plus my allocated pension lump sum. Thus , should my husband remarry, then our children can't miss out on whatsoever I can give them.
    older&wiser
    13th May 2020
    1:34pm
    I am actually in the process of doing my will at the moment and it's a bloody minefield. I was never married, was a single parent, and struggled but survived. My daughter and I got on good, I paid for her education, and supported her. She then married, to an extremely wealthy man, and 18 years ago, they both, with her main support, chose to have nothing more to do with me as I did not fit their lifestyle. We have had no contact since, and I have moved on with my life. With good friends, I want my will to give my limited assets to my supportive friends, many who have been more of a family to me.
    But apparently there will be nothing to stop my extremely wealthy daughter and son in law to contest my will. This is so wrong. My small estate would almost be an embarrassment to my daughter and SIL, would be the weeks clothing budget. They would have the money to fight my will, just for the sake of fighting it. My friends wouldn't. She is not dependent on me, I do not support her, and she certainly does not need my small estate.
    Jenny
    13th May 2020
    1:41pm
    You probably should put your reasons for your decision into your will, and that might influence any legal challenges to your estate. I am so sorry that this has happened to you. Family breakdowns like this are a tragedy.
    ChristineS
    13th May 2020
    2:53pm
    Start giving money now to those you want to benefit. Obviously I don't know your current financial situation, but if you are in a position to do this, even if it is in just smaller amounts - at least the money is not left for your daughter. I agree with Jenny, write your will with your reasons for wanting to leave your estate to your friends who have supported you, rather than your daughter, who will not suffer because she doesn't inherit from you. Record the fact that she has not made contact for years. The old saying you can choose your friends but not your family is sadly true. Good luck.
    Incognito
    13th May 2020
    5:16pm
    This happened to my mum's friend, she had stated in her will that nothing was to go to her estranged daughter (adopted) who had not seen her for years,and had abused her verbally the last time she did. Also the wife of her dead son and their daughter would 'visit' and fleece her of money, my mum knew they were taken advantage of her, they would drive her to the ATM after a very short 'visit' and they did this at least once a month. My mum's friend had wanted my mum to have all of her money (proceeds of the unit and what was in the bank) but the will was of course contested. My mum got enough to buy a car which she was forever grateful of. My mum had told her to leave the money to charity all along and her friend had insisted that my mum get it because she had been so kind to look after her when no one else did (not one family member cared about her sadly).
    So I agree you need to find a way to put money into trust or something for your friends or spend it now. If you own property maybe sign the title over.
    Virginia
    13th May 2020
    1:48pm
    WHAT A ROTTER
    Cool Nanna
    13th May 2020
    2:23pm
    A will outlines the wishes of a deceased person and if they were of sound mind at the time of preparation then I do not believe they should be permitted to be contested!! What is the point of leaving a will if it is not to be honoured??? Money is the root of all evil!! Greed, greed, greed!!
    Incognito
    13th May 2020
    5:18pm
    Exactly might as well write your will on a piece of toilet paper. Money is ruining relationships and the world. The lawyers are the biggest rip off.
    cupoftea
    13th May 2020
    2:57pm
    I asked a lawyer about my will,i am single no children i have 2 sisters who i would not give the time of day he said unless you have been keeping them giving them money regularly they won't have a leg to stand on to contest it
    Incognito
    13th May 2020
    5:22pm
    This is what I am concerned about; My mum has put her will to share her only asset (the house) with my sister and I, I am single with one son, my sister is in a defacto relationship and her partner has a daughter. If my sister was to die after getting her share then the money would go to her defacto who would then pass it on to his daughter. No one knows what is fair or not but one thing is my dad worked hard for many years to pay for the house and yet someone who is not a family member could end up benefiting. That is they way the cookie crumbles.
    Jenny
    13th May 2020
    6:31pm
    What is the situation in the event your sister predeceases your mother? That needs to be addressed first. What happens after your sister dies having already inherited from your mother is totally up to her I'm afraid. She may actually use her inheritance during her lifetime, so there won't be any problem for you.
    Incognito
    13th May 2020
    6:39pm
    Well I hope my sister does not die before my mum, she already had her son die, it would be too much for her, but I think she had her will done so I would get it all if it did happen, but yes I do realize what she does with it is her business just trying to make a point that we cannot control inheritance money as much as one would like sometimes. If she had her own kids it would have been good but she didn't.


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