22nd Jan 2019
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Can Susie block an estranged child from contesting wills?
Author: Rod Cunich

Does Susie need to lodge her will with a solicitor? And can she ensure an estranged child cannot contest the will? She asks estate planning lawyer Rod Cunich for guidance.

•••

Q. Susie*

I have drafted my own and my husband’s wills and have had each witnessed and signed by two witnesses. I have the originals of the will at home in a filing cabinet and both sons have received email copies. In both our wills, all assets have been left to the surviving partner. My first question is, do I have to lodge these wills with a solicitor?

I also have a child who was adopted at birth and with whom I have not had contact with over the past 20 years. I have put a codicil in my will acknowledging that he, and any of his offspring, are not beneficiaries of my will and that this has been done intentionally. Is this indisputable?

 

A. There is no need to lodge the wills with a solicitor. You should ensure, however, that the executor knows where the originals can be located and that they are stored in a safe and secure location.

As for your adopted child, the legislation in each state and territory permits certain categories of persons to challenge a will if they believe that inadequate provision has been made for them in the will.

The legislation sets out extensive criteria that a court must consider when hearing a challenge. If a court is satisfied that the will failed to make adequate provision, orders can be made varying the will so that the claimant is adequately provided for. You can’t, therefore, negate an adopted child’s rights in this regard by expressly excluding them or otherwise.

* Not her real name.

 

Rod Cunich is a lawyer with more than 30 years’ experience in estate planning. If you have a question for Rod, email it to newsletters@yourlifechoices.com.au.

To make the most of your money in retirement, first you need to know the rules. The RetirePlanner™ tool has all the information you need.

 

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    COMMENTS

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    mogo51
    23rd Jan 2019
    10:47am
    I am very interested in the comments by the solicitor in this instance regarding an estranged child. I am in the same position as the writer. I have been led to understand that if you make some provision and give your reasons for doing so, then there is little chance of them achieving success if challenged? Also, if as this writer has done and leaves her share of the estate to her partner, as I have done, my understanding is that the children cannot contest the will at that point? Could you please clarify these two points.
    sunnyOz
    23rd Jan 2019
    11:31am
    Have been through this recently. Note I am not a solicitor. If your will leaves to your partner who is Alice, no the will cannot be contested at that stage. I have bought - and paid for - a great deal of legal advice about your other topic. I am a single parent and my only child chose a path of total destruction of my life. Ruined my relationship, my job, my home, my hobby, my bank balance. I moved interstate and literally had to start again. My will states she is not to inherit anything and why, but all legal advice to date is that she can still contest my will. So she takes everything from me when I am alive, and then when I'm dead. Really angers me.
    OnlyGenuineRainey
    23rd Jan 2019
    6:14pm
    Yes, an adopted child can contest the will - and leaving them anything won't help. I was recently involved in a case where an estranged child, who had abused and defrauded the deceased, was left a substantial amount, but filed a claim for more than the total value of the remaining estate. Didn't win, but that is irrelevant. Once the claim is filed, the executor and named beneficiaries have lost. There is NO PROVISION in the law to have a wrongful claim dismissed. The claimant is handed a loaded gun to hold at the executor's head and demand an offer of settlement that pleases. The executor has the choice of paying 'piss off money' (pardon the language, but that's what it is!) to satisfy the greedy claimant, or spending two+ years and at least $100,000 (possibly way more) defending the will. It's a no win situation for all but the greedy claimant, who gets to challenge the will at no risk with a no-win/no-pay agreement with their lawyer. And unless the estate is very large, the cost of producing evidence in the Supreme Court is way too high so any decision will be based on which of the beneficiaries and claimant have the most money. He who wasted, gambled, drank, was irresponsible and abused Mum gets the booty, and he who spend his own reserves and energy caring for Mum in her dotage, but has worked hard to own a home and have a few dollars in the bank, is deprived. Stinking system! Disgustingly unfair, wrong, unethical, immoral - and clearly designed solely to load the lawyer's pockets!
    The wolf
    23rd Jan 2019
    11:05am
    What is the legality of a will made overseas from Expat, regarding assets and bank account , the will including foreign spouse..In Oz a will is legal, I think, if two members sign as witnesses. Do we have to go to a Consular office to have a will registered, or can we like in Oz ask two Oz citizen to witness the will. Thanks
    OnlyGenuineRainey
    23rd Jan 2019
    6:23pm
    Depends where the assets are held. The law of the state in which the assets are held applies.
    The wolf
    23rd Jan 2019
    11:05am
    What is the legality of a will made overseas from Expat, regarding assets and bank account , the will including foreign spouse..In Oz a will is legal, I think, if two members sign as witnesses. Do we have to go to a Consular office to have a will registered, or can we like in Oz ask two Oz citizen to witness the will. Thanks
    Herbie49
    23rd Jan 2019
    11:11am
    The sad and stupid part of all this, is that in reality you cannot do what you want with your assets in some circumstances.
    ozirules
    24th Jan 2019
    2:18pm
    I'll go further Herbie and say it's outrageous that a persons plans to dispose of their assets after death can be overturned. OGR's comments are spot on. We've had this topic many times here before and whilst a lot of people agree with us there are some on this forum who think it's ok to change the intent of a will because they claim some moral justification. It's never ok imo. By what right should anybody be allowed to change, challenge or dispute how I dispose of my hard earned. Cant see the situation changing as our law makers ranks have too many lawyers. I would appreciate any ideas as to how we can circumvent the system. Do we put our assets off shore or can we arrange joint ownership with our chosen recipients so that upon death they simply become sole owners of the estate ?
    Paicey58
    23rd Jan 2019
    12:36pm
    Make sure you cash up everything you have well before you pass and give it to whomever you want.
    Arvo
    23rd Jan 2019
    3:11pm
    That's a silly comment Palcey58. If you are cashed up and the money sits in a bank, or under your mattress or in shares, it's all part of accessible estate.You probably mean to spend everything or give it away as gifts to whomever you want, well before your death.
    OnlyGenuineRainey
    23rd Jan 2019
    6:21pm
    "Give it away before death' is good advice, but if you rely on a pension and don't know when you will die, that can be impossible.
    1984
    23rd Jan 2019
    12:58pm
    Great advice, told her nothing
    KSS
    23rd Jan 2019
    12:59pm
    This question has been asked very recently and the same answers given.

    Ultimately it is up to the court to decide the distribution of your assets if your will is contested. There is a conga line of people who can contest the will and an 'estranged' child is one of them (adopted or not). Specifying a less amount than another child or even specifying no bequest at all can both be contested. Then it is up to the court to decide. You have no control.

    All you have to decide is the likelihood of the child (or anyone else for that matter) actually contesting the will especially if the chances of them discovering your demise are low!
    Arvo
    23rd Jan 2019
    3:34pm
    KSS-Where possible, Will disputes are resolved through a settlement agreement or mediation. This prevents the matter going to Court and therefore reduces legal costs, brings earlier resolution and preserves family relationships.
    In order to ascertain what method is best for the claimant contact a good reputable barrister who specialises in this field. The barrister will refer you to one of his recommended solicitors to act on your behalf. There will be upfront costs of, say $2,000 to cover the process. The final cost will depend on the agreement whether the cost is to be paid out the estate or out of your agreed portion. Be prepared for the latter. Do not trust the "no win, no fee" because you are still liable for the process cost. Depending on the time the barrister has to spend on your case their fee may be as little as $7,000 and the solicitor's fee around $17,000 at best. If you go to court then the cost will be, "how high is the sky"?
    KSS
    23rd Jan 2019
    4:26pm
    Yes Arvo but ultimately they end in court (when mediation fails) and as I said the court will decide.
    OnlyGenuineRainey
    23rd Jan 2019
    6:20pm
    Rubbish, Arvo. The settlement conference cost is typically $25,000 - $30,000 per party, due to the work lawyers do to ostensibly prepare for it, and the entire cost comes out of the estate - therefore paid by the named beneficiaries, regardless of the honesty and merit or otherwise of the claim.

    And the conference is a total farce. The claimant gets to ask for what they want and threaten to proceed to court and run up further bills in the tens to hundreds of thousands if they don't get it. There is no defence possible. Goodness, sometimes the defendant isn't even allowed to participate. The lawyers play a horse-trading game! And the longer it takes to reach any agreement, the higher the cost - but NONE of it is paid by the greedy claimant, so it's to their benefit to be greedy and keep rejecting offers.

    There are alternate resolution processes available at low cost, but greedy claimants will NEVER consent to use those and there is no compulsion whatever and no penalty on them for refusing. They use the legal costs as a loaded gun to extort, and the courts don't just let them - they encourage them.
    1984
    23rd Jan 2019
    1:02pm
    This post is very similar to one last week. YLC must be getting short on ideas
    Barbara Mathieson
    23rd Jan 2019
    3:45pm
    Read about this problem last week!
    Liani
    4th Feb 2019
    9:17am
    Something that has occurred in my family more than once is that, after one partner has died and the estate is left to the surviving partner, that partner has remarried and subsequently died, and everything has gone the the new partner and their children when they died. How do we ensure that our estate ends up with our children and grandchildren by birth?


    Tags: money, will, rod cunich,

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