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

If you enjoy our content, don’t keep it to yourself. Share our free eNews with your friends and encourage them to sign up.

RELATED ARTICLES

    Disclaimer: This information has been provided by Rod Cunich and should be considered general in nature – legal advice should be sought.





    COMMENTS

    To make a comment, please register or login
    KSS
    31st Jul 2019
    12:19pm
    How many times does it need to be repeated that anyone can contest a will. And the only winners, are the lawyers.
    Polly Esther
    31st Jul 2019
    2:00pm
    KSS It gives our friend Rod Cunich something to occupy his mind :)))
    MICK
    31st Jul 2019
    3:39pm
    Kind of thinking it shows the legal system for the dog's breakfast it often is. Lack of justice at all levels, unless you have a top (unaffordable) lawyer, is how it works and the only people who do well out misjustice is the lawyers and well heeled clients....who do mostly buy THEIR justice.
    ChristineS
    31st Jul 2019
    12:32pm
    We are sharing and supporting our kids now whilst they need it; not waiting until we die - hopefully not for 15-20 years away. Once the money has been given, there is no contest. I recently was the executor for my late father's will; equal shares amongst five kids. Nothing for mum because she had left the marriage 32 years ago, she was OK with that, but I guess she could have contested if she had wanted to. Share now is my (non-legal) advice :-)
    Rosret
    31st Jul 2019
    12:42pm
    Once are couple is divorced and a property settlement has been signed they are not entitled to a claim on the ex-partner's estate.
    ChristineS
    31st Jul 2019
    12:44pm
    Rostret - just to clarify - my parents were NOT divorced - just separated.
    Rosret
    31st Jul 2019
    1:08pm
    Then your Mother should have challenged it as she has not received her property settlement. Hopefully you guys will look after her. :)
    Rosret
    31st Jul 2019
    12:40pm
    This really is a huge issue and it is something that needs to be dealt with by changing the law. Even if the step father doesn't have any children the entire estate can be squandered after the wife passes away. It may have even been all his property in the first place.

    Personally, I am very protective of my children's inheritance. If people marry later in life those prenups should be signed and sealed.
    Lookfar
    31st Jul 2019
    3:15pm
    Hi Rosret, how would you like to change the law?
    I think it is important to understand that the Law is basically solidified feelings, - the French Reovolution proclaimed Liberty, Equality, Fraternity, we would call that Freedom, equality before the Law and Brotherhood/sisterhood, or to add a more inclusive interpretation, Thinking, Feeling and Willing, - from a spiritual perspective, perhaps, Spirit, Soul and Body.
    - Spirit/Thinking includes thereby, Freedom, Culture, the Arts, Education, Human Development.
    Equality/Feeling includes human Relationships, Rights and Duties, and their 'enshrinement' in Law.
    Brotherhood/Will includes the economic life in it's direct concept, buying, selling, manufacturing, Providing from our Work and the Earth, to sustain each other to live, and in these times, to sustain that Earth so we may continue that it sustains us.
    In our days, it is obvious that much of things from one area have been put into the wrong part, - the three areas are based on the physical body of the human being, so it is interesting to see where areas have become misplaced and what that has led to.
    Just some thoughts, Rosret, that you may find helpful in considering the changing of the Law.
    Eddy
    31st Jul 2019
    9:25pm
    Rosret, my understanding is that under Australian law a pre-nuptial agreement is meaningless, not worth the paper bit is written on.
    Farside
    1st Aug 2019
    8:29am
    Section 90 of the Family Law Act deals with financial agreements, specifically s90B deals with financial agreements before marriage (aka pre-nuptial agreements). The Act (s90G) also describes the requirements to ensure such agreements are binding; these are easily understood and not onerous.
    Leo
    31st Jul 2019
    2:47pm
    My mother remarried after my father passed away.
    My mother owned the family home outright as my father had an insurance policy and a business.
    When my mother passed away she left everything to her second husband. It stinks but nothing could be done
    Rosret
    31st Jul 2019
    5:00pm
    Yep.
    Chris B T
    31st Jul 2019
    3:22pm
    It would appear that at the Demise of one Step Parent before the other is to Wind Up the Property Settlement.
    Then state what will happen from that time on wards.
    This should be Written in Each Will and opposing Siblings could Work It Out At That Time with Step Parents.
    Sounds like a loving "Relationship with extended Family" NOT
    If you can't agree when there alive what chance have you when there Dead.
    Rosret
    31st Jul 2019
    5:07pm
    If I remarried I would not want my estate to be given to the Step or the Step's children.
    I would hope that person would understand and want the same for themselves and their children.
    Alexii
    31st Jul 2019
    5:59pm
    If "Brent" is in NSW then the following will apply (from Gerard Malouf & partners ) https://www.contestingwills.com.au/faqs :
    Q1. Why I am not entitled to Contesting a Will in NSW?

    A. It is generally accepted that when a person passes away they have a right to leave their property to whomever they wish, and for this reason they create a Will leaving their final wishes and directions as to how to distribute their property. In most cases the deceased will leave that property to family, namely children, spouses, life partners or parents, but in those cases where the estate has been left to third parties such as doctors, friends, a single child, charities or someone outside the immediate family, there is an avenue certain family members, or dependant members of the household, can pursue to ensure they get what they rightly deserve.

    The Family Provisions Act 1982 (NSW) allows a number of 'eligible persons' to contest a Will of a deceased person. These 'eligible persons' are:

    a) The wife or husband of the deceased person at the time of their death (this includes de-facto partners and life partners).

    b) A child of the deceased, or a child of a domestic relationship with the deceased

    c) A former wife or husband of the deceased

    d) A person:

    (i) who was, at any particular time, wholly or partly dependent upon the deceased person, and

    (ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of a household of which the deceased person was a member

    To bring an action against the estate of a deceased person, you must fall within one of the above categories of 'eligible persons'.
    Russell
    4th Aug 2019
    10:37am
    Have I no right to decide my last wishes and for those wishes to be honored by the law. When I die I have written and signed and it is witnessed what my last wishes are, so who has any right to dishonor my last wishes. The only reason that anyone does dishonor a persons last wishes is for money (greed) and as I have died then I cannot defend my last wishes. So why pay a greedy lawyer to do the legal side of a will when your will means nothing and people can contest and dishonor your last wishes.