Being left out of a will

mellowyellow

mellowyellow

Well-known Member
With the frequency of divorce and the general increase in life expectancy of people in Australia, second marriages are not uncommon. The problem that exists for children of the first marriage is that any inheritance they might have expected to receive from their parent may end up being received by their parent’s second spouse and the children of this second marriage. Is it fair?

Not in my book.

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mellowyellow said:
Is it fair?
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No but it happens in the US also.

In my mother's case she knew she was dying and so gifted us what she and her second husband agreed we should get. With the understanding that he would leave all of the residual to his children when he died. To make it clear my brothers and I were the witnesses to his will leaving us out.

All worked fine, however we are not talking about a lot of money... Also she had a few months of mental clarity and the wisdom to use it before dying. And in the US gift taxes are calculated same as inheritance taxes, so no loss there. We had no problems, it was not enough money for us to have to pay either.
 
mellowyellow said:
With the frequency of divorce and the general increase in life expectancy of people in Australia, second marriages are not uncommon. The problem that exists for children of the first marriage is that any inheritance they might have expected to receive from their parent may end up being received by their parent’s second spouse and the children of this second marriage. Is it fair?

Not in my book.

.
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A lot depends on the first marriage children's actions. If they maintained their connection to their biological parent, and welcomed their step-parents and siblings as family, they likely will be included in their parent's estate distribution.
If the first marriage children were overly concerned about "their fair share", well that is a burden that desire for material gain brings...
 
Jules said:
When a parent remarries, they have the choice to leave all or part of their estate to their children.
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Problems is, a current spouse can contest a deceased spouse's will. They win these cases all to often.

If an inheritance is substantial, the person writing their will should consult with an attorney to make sure it's incontestable.
 
My friend's father died after remarrying, and with no will written at all, the second wife got everything and his children from his first wife got nothing.
 
bowmore said:
If you set it up with the children as beneficiaries, there is no will to contest.
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In the US that doesn't always work.

Generally the surviving spouse inherits and then after the passing of the first spouse can change their will to whomever they want. I believe this varies somewhat from state to state, and depends on when the assets were acquired, before or after the marriage. It can get complicated.

If you see yourself getting into something like this you need to get good legal advice, now before you die!
Chet said:
My friend's father died after remarrying, and with no will written at all, the second wife got everything and his children from his first wife got nothing.
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Unfortunately this happens a lot.
 
Both my husband and I have two children each. Prior to living together we signed legal co-habitation agreements. Prior to our marriage we signed legal pre-nuptial agreements. Big key items are further listed in our wills. Hopefully items within the marriage home won‘t be a debate.

A marriage is a legal agreement and should be treated as such.
 
There is another problem with wills here. You may think you can leave your money to who you choose, but not so. If an adult child in my state of NSW is left out of your will (for numerous reasons) there isn’t much you can do about it, should they decide to challenge. If they are in dire financial shape, they will have a legal claim to the assets in your estate. (Oct 2021)

In a recent trial, an adult child on welfare was left out of her fathers will, she challenged and won.
 
My friend and neighbour was an only child. Her mother moved her boyfriend into her home and they lived together for a few years. When she died, her mother left everything to him, including the house. He asked her if she would like to come to the house to choose something to remember her by.
 
mellowyellow said:
There is another problem with wills here. You may think you can leave your money to who you choose, but not so. If an adult child in my state of NSW is left out of your will (for numerous reasons) there isn’t much you can do about it, should they decide to challenge. If they are in dire financial shape, they will have a legal claim to the assets in your estate. (Oct 2021)

In a recent trial, an adult child on welfare was left out of her fathers will, she challenged and won.
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So what is the point of making a will if it can be ignored when you die ? ! :(
 
IMO wills/bequests should not be used as weapons to control the living or settle old scores.

I've felt bad in a few situations where one person in a second marriage dies and it becomes winner take all for the surviving spouse and their biological children.

IMO a good attorney is worth the money in these more complicated situations.
 
Mandee; "So what is the point of making a will if it can be ignored when you die"
My sentiments entirely . Some years ago the laws were changed in NZ whereby you can have your whole Will overturned. And also the beneficiaries you listed in your Will could end up with nothing or only a small proportion of what was to be left to them.
I have updated my Will knowing full well it could be challenged in a court of law and overturned, but if it is challenged it will cost the challengers big money just to have their case heard, so that would give me plenty of satisfaction.
 
Mandee said:
So what is the point of making a will if it can be ignored when you die ? !
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At a minimum it will let people know what you wanted.

Having good legal advice should help you both understand the limits of what you can do in the will, and lead you to a will that is safer from being over turned.

Spending it all, or giving it away before you die is the surest thing.

There are no guarantees in life, and fewer afterwards.
 
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Hi Bellbird, yes it's a crazy new law that we share, I really don't get it.

What percentage of wills are contested in Australia?

More than 50 per cent of wills are being contested in courts, typically by family members fighting over how parents' estates should be divided between siblings.
 
I worked with a nurse who was also a friend who had just the opposite happen. She re-married, probably in her late 40's or early 50's. He was a nice man but never changed his will. When he died, his children put her out of the house they lived in...even the one she thought she had a close bond with. She had to move to an apartment in our city.

As far as leaving one's own children out of the will, although they are not entitled to anything, technically, if the parent wanted them to have something that instead went to step-children due to lack of a will or lack of clarity, that would be a shame. I know I made sure when having my attorney draw up my will, that my husband's children, some of whom were ungrateful, would not get anything I left behind.
 
OneEyedDiva said:
I worked with a nurse who was also a friend who had just the opposite happen. She re-married, probably in her late 40's or early 50's. He was a nice man but never changed his will. When he died, his children put her out of the house they lived in...even the one she thought she had a close bond with. She had to move to an apartment in our city.
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It happens, all the more reason to get good legal advice while all are still living and competent. I suspect this is not what her husband would have wanted...
 
mellowyellow said:
With the frequency of divorce and the general increase in life expectancy of people in Australia, second marriages are not uncommon. The problem that exists for children of the first marriage is that any inheritance they might have expected to receive from their parent may end up being received by their parent’s second spouse and the children of this second marriage. Is it fair?

Not in my book.

.
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Yes it is fair. The spouse or second or third, etc. spouse is the one that is there day in and day out. The one that often takes care of medically or otherwise the desires or needs of the ailing or aged spouse if they are capable of doing so. If the material goods and wealth belong to the spouse, it is their decision how it is to be distributed. I know someone whose grown kids deserted him in his darkest hours of illness. Never wrote, never called, you get the picture. Why should they be entitled to anything? Mostly the spouse is always there giving their love and time. This gentleman went to a lawyer and put a stipulation in the will that his children were dead to him and shall receive nothing. More power to him. Entitlement by a bunch of sycophants and greedy relatives is BS. :)
 

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