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. This would be the parent’s home. Evidence was put of their parents’ expressed wishes to treat their two children fairly and to give each of them a property. They made wills to give effect to this. What could go wrong?
Inheritance in domestic relationships and stepchildren
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.
By B Stead
Court costs in contesting a will may run into thousands.
If you are thinking of making a claim for family provision under a will, despite all efforts to find a solution, including mediation, don’t assume that your costs will be paid out of the estate; at least in New South Wales. What happens depends on individual circumstances.
In recent years the New South Wales Supreme Court has made it clear that the expectation that the costs of making a family provision claim will automatically be paid out of the estate, has been “thoroughly discredited.”1
Illegitimate children or ex-nuptial children are those born outside of marriage. Changes to the law mean that the inheritance rights of illegitimate children are equal to those of legitimate children. So this means they can inherit. What happens if no will was left, (an intestacy) either by an ex-nuptial child or their parent? Who inherits then? Can an ex-nuptial or illegitimate child be eligible under succession law to make a claim on a deceased parent’s estate?
Left out of a will or seeking more – who can apply for provision?
Family provision laws were introduced to remedy situations where willmakers failed to leave adequate provision for the proper maintenance, support and advancement in life for close family, usually spouses, partners and children.
The legislation gives the court1 discretionary power to order provision from a deceased person’s estate, where found to be inadequate, to “eligible” applicants, under certain circumstances. It is not automatic.