An early inheritance of a mortgage-free home was given to the younger daughter at the time of her marriage. It was well understood by all family members at the time that the other older daughter would receive her inheritance when the last parent died. However things didn’t go to plan.
A stepchild’s eligibility under the statutory rules for seeking provision from a step-parent’s deceased estate can be difficult.
In a Victorian case1 the executor of a deceased estate applied to the Supreme Court to have a claim for family provision dismissed.
The claim was brought by the adult daughter of the deceased’s former domestic partner, who had died some years before. She had been left out of his will, despite assurances and promises to the contrary. The deceased had left everything to his new domestic partner.
If, despite all efforts to find a solution, including mediation, you are thinking of making a claim for family provision under a will, don’t assume that your costs will be paid out of the estate; at least in New South Wales.
Illegitimate children are those born outside of marriage, or out of wedlock, in older terminology. These days the word “illegitimate” has largely been replaced in law by the term “ex-nuptial” – nuptial referring to marriage. Either way, can an ex-nuptial child inherit from their natural parents? Or contest a natural parent’s will for provision out of their estate? What if no will was left?
In succession law the court has discretionary power under family provision legislation to order provision from a deceased person’s estate to “eligible” applicants and in certain circumstances. It is not automatic.
The legal rules were introduced to remedy situations where willmakers failed to leave adequate provision for close family and certain other dependents as defined. It is not for second bites at the cherry. The court has wide power in deciding who pays costs of proceedings.
A will is a testamentary document, often referred to by lawyers as an ‘instrument’, setting out what a person intends to have happen to their property, (real and personal), and other matters, when they die.
It is the legal way to record a person’s instructions and wishes on how they want their property distributed on the event of their death, and who is to responsible for carrying out those wishes.
Because it is to take effect only on death, a will is referred to as being ‘testamentary’.
A testamentary document or instrument is one which its writer intends, at the time of writing it, to come into effect when they die, and not before. It is where a person sets out their intentions for the distribution of their property when they die.