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legal question - challenging wills


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35 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 ///

Posted 02 February 2013 - 12:54 PM

what state? what relationship to the deceased.

#3 toc76

Posted 02 February 2013 - 12:57 PM

Victoria and its his daughter

#4 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.

#5 toc76

Posted 02 February 2013 - 01:07 PM

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

#6 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.

#7 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.

#8 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.

#9 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.

#10 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.

#11 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.

#12 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.

#13 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.

#14 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.

#15 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.

#16 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

#17 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?

#18 ~~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.

#19 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.


#20 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 .....


#21 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?

#22 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.


#23 Feral*Spikey*

Posted 02 February 2013 - 06:47 PM

What LB said. biggrin.gif

#24 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.

#25 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.





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