Jump to content

legal question - challenging wills


  • Please log in to reply
34 replies to this topic

#1 toc76

Posted 02 February 2013 - 12:47 PM

HI Everyone


A bit of a legal question.  What chance does a person have to challenge a will if they have had no contact with the deceased person for 25 years.    Have relatives who are planning on contesting will who are saying that they had had contact with the deceased person and they had told them they were in the will.  its fairly common knowledge the person has in fact had no contact.


Is the onus on the person challenging to prove the contact?



Am getting legal advice on Monday but stressing a bit until then



thanks

#2 toc76

Posted 02 February 2013 - 12:57 PM

Victoria and its his daughter

#3 elizabethany

Posted 02 February 2013 - 01:02 PM

This is not legal advice, but I have known a family where the son was in a similar situation, and the will specifically mentioned him as being intentionally excluded.  He failed in contesting it, but it cost a good portion of the estate to defend it.  It was really up in the air the whole time, with no firm "it will go this way" from the lawyers.

#4 toc76

Posted 02 February 2013 - 01:07 PM

thanks. my worry is that they will fight it until there is nothing left.

#5 bakesgirls

Posted 02 February 2013 - 01:08 PM

I imagine they would still have a case being the deceased child, but in saying that there are never any guarantees. It would probably be easier and more cost effective to include the deceased daughter in the will than to fight it though.

I know a family where a child contested their parents will. They were awarded a portion of the estate   (they had been excluded previously), but the majority of it had already been eaten into with legal costs. There was next to nothing left when it was settled.

#6 toc76

Posted 02 February 2013 - 01:12 PM

my fear. have wondered if better to offer them money from the estate to settle it and make it go away.

#7 Feral*Spikey*

Posted 02 February 2013 - 01:45 PM

I guess the question you need to answer is whether you think it was 'fair' for that child to be excluded.

Sure, if they've done something totally heinous to their parents, but if not? Why are they being penalised?

If they've already had a lot of financial support or gifts of property from their parents, then the courts might regard the exclusion as 'evening up' the benefit compared to other beneficiaries (which is what happened in the Wentworth Case).

I would seek legal advice from a lawyer who specialises in Wills and Probate - keeping in mind that there needs to be a very good reason to exclude one child from the Will.

#8 Peppery

Posted 02 February 2013 - 01:52 PM

Sadly I have seen this first hand, the deceased person specifically detailed why the child was left a smaller portion but they still ended up receiving a larger portion. A lot of the estate was chewed up in legal fees.

#9 toc76

Posted 02 February 2013 - 02:46 PM

child chose not to have contact with parent after divorce. have had no contact in at least 36 years. now claiming they have had contact but parent made no mention of this to anyone including her other children, sisters, brother, parent or best friend.

#10 mamma2miracles

Posted 02 February 2013 - 03:16 PM

I have heard people say it's better to leave a tiny amount to a person in a will, say $100, it shows that it's deliberate, they weren't excluded, not that that would help you in this case.  As a child of the deceased, they actually do have a case I believe.

#11 Apageintime

Posted 02 February 2013 - 03:19 PM

*warning anecdata coming*
My mother did not speak with her father for over 30 years and was excluded from his will. She was successful in challenging it, and was awarded a significant amount of money.

I don't in any way think this was fair and I think she should have just left it well alone.

I hope this works our better for you.

#12 Feral*Spikey*

Posted 02 February 2013 - 03:23 PM

QUOTE (toc76 @ 02/02/2013, 02:46 PM) <{POST_SNAPBACK}>
child chose not to have contact with parent after divorce. have had no contact in at least 36 years. now claiming they have had contact but parent made no mention of this to anyone including her other children, sisters, brother, parent or best friend.


See, this doesn't really matter. Unless the child did something that was a criminal offence, such as defrauding the parent, it won't have any impact at all. Not being in public contact with a parent isn't a crime, and nor is not sharing that contact with all and sundry. There is a presumption that a parent will provide equally (or at least equitably) for their children/heirs. It sounds like this will doesn't.

If that's all you've got to support a claim to cut them out of a Will, then I would think they've got reasonable prospects of success. As I said, see a specialist lawyer.

#13 Peppery

Posted 02 February 2013 - 06:02 PM

QUOTE (mamma2miracles @ 02/02/2013, 04:16 PM) <{POST_SNAPBACK}>
I have heard people say it's better to leave a tiny amount to a person in a will, say $100, it shows that it's deliberate, they weren't excluded, not that that would help you in this case.  As a child of the deceased, they actually do have a case I believe.


The person in my situation thought the same, left a letter detailing exactly why they left the sum they did to their child. Meant absolutely nothing in the eyes of the law.

#14 AbbottProofFence

Posted 02 February 2013 - 06:08 PM

My husband's grandmother omitted my mother in law's two sisters from her will. She wrote a letter detailing the reason she omitted her daughters from the will is because she had not been bothered keeping in contact for 15 years while her other 2 children (MIL and her brother) sacrificed their time and money to take care of her in her old age and she wanted them to be the ones and she wanted her estate to be a gift to them for what they did to her.

They threatened to challenge it and would have been able to do so. In the end, the lawyer for my MIL and her brother convinced them to give them a small portion of the money to 'buy them off' and it avoided the estate being caught up for years with contesting.

It made me angry to learn the law didn't consider the expressly written wishes of the deceased.

#15 jess1980

Posted 02 February 2013 - 06:13 PM

No advice but why do people feel the need to contest a will if they dobt get what they think they are entitled to. I just think its disgusting that people are worried about what they will get when people pass away. Why have a will when your wishes may or may not be carried out

#16 lynneyours

Posted 02 February 2013 - 06:18 PM

QUOTE (jess1980 @ 02/02/2013, 07:13 PM) <{POST_SNAPBACK}>
No advice but why do people feel the need to contest a will if they dobt get what they think they are entitled to. I just think its disgusting that people are worried about what they will get when people pass away. Why have a will when your wishes may or may not be carried out


yyes.gif  I'd like to know too - why have a will, and specifically state why you are not leaving $ to a particular person and that can be over-ruled?  What is the point of a will then?

#17 ~~HappyMummy~~

Posted 02 February 2013 - 06:32 PM

I hope it works out for you.

My situation - my brother cut himself off from our whole family a few years ago very cruelly and abruptly.  None of us had previously had any issues with him then one day letters arrived for both my parents telling them what terrible parents they had been, blah blah blah, and that he wanted no further contact.  Charming.

Anyway, long story short - my parents have both excluded him from their wills and included copies of his letters with their wills.  He will never receive a cent.  Not that he will probably ever know when they pass.

Families suck sometimes.  I never thought this would happen to mine.  Far as we all knew all was hunky dory - seems his wife never liked us.....  Lovely for her children never to see their grandparents or relatives again....  Stupid cow.  Oh well she robbed her children of relationships and inheritance also.

#18 Feral*Spikey*

Posted 02 February 2013 - 06:39 PM

QUOTE (lynnemine @ 02/02/2013, 06:18 PM) <{POST_SNAPBACK}>
yyes.gif  I'd like to know too - why have a will, and specifically state why you are not leaving $ to a particular person and that can be over-ruled?  What is the point of a will then?


In most cases, Wills are executed exactly as they are written.

They're overturned when the courts decide that something in the distribution was unfair or unreasonable.

The moral of the story is, don't use your will to 'punish' one of your children (or indeed all of them) because the law is unlikely to let you.

HappyMummy's parent's will would be contestable. Just because you have harsh words, and don't speak to someone, doesn't mean you can continue to punish them via your will. The courts will take into account the WHOLE of the relationship, and it would seem that there was a sound relationship for at least some of his life. Besides, why would you punish your son (and his children) when you believe the DIL is responsible for the break down of the relationship? Doesn't make sense to me.


#19 Lucrezia Borgia

Posted 02 February 2013 - 06:42 PM

Courts don't like people dictating from the grave (too much) and there is public policy objective in keeping people off social security (if they can) by tapping into family money .....


#20 Gumbette

Posted 02 February 2013 - 06:43 PM

QUOTE (Peppery @ 02/02/2013, 07:02 PM) <{POST_SNAPBACK}>
The person in my situation thought the same, left a letter detailing exactly why they left the sum they did to their child. Meant absolutely nothing in the eyes of the law.

So what IS the point of a will exactly?

#21 Lucrezia Borgia

Posted 02 February 2013 - 06:46 PM

To divide and distribute your assets as per your wishes provided those wishes are in accordance with the law and public policy ...

Edited by Lucretia Borgia, 02 February 2013 - 06:47 PM.


#22 Feral*Spikey*

Posted 02 February 2013 - 06:47 PM

What LB said. biggrin.gif

#23 girltribe4

Posted 02 February 2013 - 06:51 PM

I just wish my father HAD left a letter as to why I was left less than my other 2 sisters sad.gif According to the (evil) stepmother it was because I got sent to a boarding school and one of them didn't wink.gif But I have a feeling its because I moved back to Australia and chose to have a relationship with my Bio family . I guess I will never know the truth.

Please never punish anyone through a will sad.gif . I didn't contest it , prob could have but it would have ment continuing contact with the Stepmother.

#24 bakesgirls

Posted 02 February 2013 - 06:56 PM

This is the scenario for the family I know that contsted a will. Granted it was a blended family, so I know it gets trickier still.

Parents had 2 children, mother died leving everything to her husband (including her inheritence from her parents), as is only right. Father then remarried a woman with 3 children of her own. When the father passed away he left everything to his wife including his late wifes belongings. This wife then passed away and left everything to her 3 children, including the belongings of her husbands late wife. She had no intentions of leaving her step children anything, even though a portion of what she inherited was from her step childrens mother,  a woman she had never met and had no ties to. Step children contested the will, a fight ensued for years and most of the estate was eaten up in legal fees.

To those who say what's the point of having a will, well IMO, those kids had every right to contest it. Their step mother treated them very unfairly with no thought that what she had was also in part to her husbands late wife.

Edited by bakesgirls, 02 February 2013 - 06:59 PM.


#25 Nofliesonme

Posted 02 February 2013 - 06:59 PM

My dads will be contested when the time comes. I already know it sad.gif but sadly they won't get anything because he has nothing to give and nothing left worth giving.... Really to have to worry about this stuff is ridiculous. None of his children have contacted him in over 10years and up to 18years before that..... He tried but they pushe away...




0 user(s) are reading this topic

0 members, 0 guests, 0 anonymous users

 

Meet the latest baby giving the internet hair envy

"As a bald man, I'm very proud of my 2-month-old's hair," wrote new dad Brian Gorham, 32, along with a photo he shared to reddit.

Woman hits back after shop assistant labels her engagement ring as 'pathetic'

A US woman has been applauded worldwide for sharing a photo of her modest, US$130 engagement ring after a shop assistant labelled it "pathetic".

Mila Kunis and Ashton Kutcher welcome baby boy

Mila Kunis and Ashton Kutcher welcomed their second child, USA TODAY has confirmed.

After his grandkids moved away, this grandpa came up with a beautiful way to stay in touch

Chan Jae, a 75-year-old man from Korea, missed his grandsons terribly when they moved overseas.

20 gorgeous Christmas stocking and sack options

It seems every year that Christmas-themed goodies for kids get less tacky and more stylish.

Dad's genius hack for how to go shopping with a baby

A dad has shared his genius hack for tackling Christmas shopping with toddlers.

How I gave birth far too drug-free for my own liking

I certainly wasn't shy about medication. In fact, my policy on this was, in the immortal words of Britney Spears, "Gimme gimme more".

Christmas-inspired names for your December baby

Due during the festive season, or just have a love of Christmas?

Three-year-old mistakes policeman for Santa, so naturally he goes along with it

When an adorable three-year-old spotted a white haired gentleman in a restaurant she naturally assumed he was Santa Claus.

To VBAC or not to VBAC?

"If, after careful assessment by their maternity care provider, there seems to be no reason why a woman shouldn't be offered a chance at VBAC, then the opportunity should be provided."

Baby tries broccoli for the first time, immediately regrets it

It's probably fair to say that broccoli is an acquired taste.

'I didn't think I'd have pimples as a grown-up ... then I fell pregnant'

As specialists treat more adults for acne, Lucy Sheref reveals the emotional cost of years spent struggling with the condition.

Stranger's act of kindness helps overwhelmed mum in supermarket

A random act of kindness from a stranger in the supermarket brought a mum to tears, exactly when she needed it most.

21 adorable Christmas outfits for your baby

December 25 is just around the corner, and it's the perfect opportunity to dress your bub in a sweet festive outfit.

 
Advertisement
 

Top 5 Articles

Advertisement
 
 
 

What's hot on EB

What pregnancy is really like: mums share their honest opinions

We asked real women what surprised them during their pregnancy. They've shared their experiences in the hope of preparing the rest of us better for the ride

The truth about big-headed babies

Research suggests that big headed babies become more intelligent than their smaller peers. One mum shares the positives and negatives of having a big headed baby.

How to encourage your baby's gross motor development skills

There are some everyday things that parents can do to improve gross motor skills and coordination.

'My baby's extra thumb saved her life'

A mum whose daughter was born with an extra thumb says that the extra digit saved her life.

He gave her his liver, she gave him her heart

Heather Krueger and Chris Dempsey's origin story began in a darker place than most: with stage 4 liver cancer.

Toilet training from birth? It is possible

This method, called elimination communication (EC or assisted infant toilet training), is becoming increasingly popular in the West.

Watch hilarious montage of strangest pregnancy questions on Yahoo Answers

Some of the strangest questions about pregnancy - and some of the most bizarre spelling - have made for a hilarious video.

How to reduce your chances of perineal tearing in birth

The use of heat packs, along with other aspects of clinical care, can reduce your risk of tearing in birth.

 

Baby Names

Unusual Celeb Baby Names

Click through the gallery to read the details and see some of the most memorable monikers in show biz families.

 
Advertisement
 
 
Essential Baby and Essential Kids is the place to find parenting information and parenting support relating to conception, pregnancy, birth, babies, toddlers, kids, maternity, family budgeting, family travel, nutrition and wellbeing, family entertainment, kids entertainment, tips for the family home, child-friendly recipes and parenting. Try our pregnancy due date calculator to determine your due date, or our ovulation calculator to predict ovulation and your fertile period. Our pregnancy week by week guide shows your baby's stages of development. Access our very active mum's discussion groups in the Essential Baby forums or the Essential Kids forums to talk to mums about conception, pregnancy, birth, babies, toddlers, kids and parenting lifestyle. Essential Baby also offers a baby names database of more than 22,000 baby names, popular baby names, boys' names, girls' names and baby names advice in our baby names forum. Essential Kids features a range of free printable worksheets for kids from preschool years through to primary school years. For the latest baby clothes, maternity clothes, maternity accessories, toddler products, kids toys and kids clothing, breastfeeding and other parenting resources, check out Essential Baby and Essential Kids.