Will father’s death affect legacy?

Estate lawyer Rod Cunich tells Beverly how her ex-husband’s terminal illness may affect a yet-to-be-realised inheritance from his late mother.


Q. Beverly
I have a question regarding the general order of distribution of a will as I am concerned that my children could miss out on an inheritance from their grandmother as their father has a terminal illness and may die before their grandmother’s estate is wound up.

The grandmother died recently and has left her estate to her three adult children. The major part of her estate is her home, which is yet to be sold.

My ex-husband is the eldest of the three children and has recently remarried. He now has terminal cancer and needs to change his own will so that only a certain portion – an amount that he has decided on – goes to the new wife, and the rest to our two children.

My question is, if the grandmother’s house is not sold – and the money not distributed – before my ex-husband’s death, will our two children miss out on any inheritance (through their father) from their grandmother’s estate?

Also, can anything be done at this point to protect my children’s interests?

A. The answer to your question depends on the wording of their grandmother’s will, so a definitive answer can’t be given without having access to a copy of the will. I can only therefore hypothesise based on what commonly occurs, not what will actually occur.

In many wills, the will-maker will say something like: ‘I leave my estate to such of my three grandsons AAA, BBB and CCC who survive me, and if more than one equally as tenants in common.’ Sometimes the beneficiary must ‘survive me by 30 days’.

There is no magic in the words quoted above. There are many variations of this type of clause that all produce the same outcome, that is, equal division between a number of persons, provided they are alive at the date of death of the will-maker or 30 days after that death.

In any event, if either version of this clause applies and your ex-husband has survived his mother by the requisite time, he is entitled to receive the gift. If he passes away before he actually receives the gift, then the gift should be payable to his deceased estate for distribution in accordance with his will.

It is critical he changes his will in anticipation of receiving the gift (whether before or after his death).

Rod Cunich is a lawyer with more than 30 years’ experience in estate planning. If you have a question for Rod, email it to [email protected]

Related articles:
Power of attorney protocols
Cost of updating a will
What’s involved in being an executor

Disclaimer: This information has been provided by Rod Cunich and should be considered general in nature. Seek legal advice before acting on this information.


Janelle Ward
Janelle Wardhttp://www.yourlifechoices.com.au/author/janellewa
Energetic and skilled editor and writer with expert knowledge of retirement, retirement income, superannuation and retirement planning.
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