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QLD Contesting Father's Will - What are Our Chances?

Discussion in 'Wills and Estate Planning Law Forum' started by Michael70, 23 February 2016.

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  1. Michael70

    Michael70 Member

    23 February 2016
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    My father, who passed away recently, has three children. My father and mother separated and divorced in 1975 and 1976. My father tried to get custody of children but that was not really done in those days. Early in 1977, he made a will, leaving everything to the children and then later in 1977 he was given custody of two of the children, boys, but the third, girl, remained with my mother.

    The family was split by each family living in separate states as well so visiting was not simple. Over the next 15 years, my father raised the two boys and he did not have much to do with the girl. One of the sons became estranged from the father and barely spoke or visited the father for over 20 years until my father's death. Also, my sister had very little to do with my father throughout her whole life and possibly only saw him for about a week or so over the last 35 years.

    Over the years, my father repeated on numerous times and in front of my wife that he did not want his other son to have anything in the will. He also stated that he believed that my mother would leave everything to my sister and so he would leave everything to me.

    My father became ill with dementia a couple of years ago and I became administrator of his estate and looked after his affairs. During this time, I was basically his only visitor, every week, with my young daughter which provided him with great joy.

    When he passed, we did not believe there was a will, as it was not in his documents and searching for one was unsuccessful. Eventually, the one from 1977 was found.

    Is it possible to track down a more recent will somehow? A more recent will would most likely have been made in Victoria.

    This will is quite old and does not represent his wishes based on the changes that occurred in his family life over the next 35 years. Another will was likely made, but cannot be found. Is it possible, and how likely is it to succeed, to contest that will so that his recent wishes are taken into account, granted that the only proof would be statements by myself and my wife about what he said prior to his dementia?

    Those recent wishes would be for his other children to be excluded from the will. Also, would it be possible, and how likely will it succeed, for my 4-year-old daughter to contest the will as she and him became quite close in his later years and even though he made comments regarding his will and her during those years, he did not have the capacity to make those decisions then?
  2. AbbyBee

    AbbyBee Member

    8 March 2016
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    Your story is not uncommon. If your father had made his intentions known when he was of sound mind, he should have done all that he could have done to make those intentions known and executed. He obviously knew about the importance of a Will because he wrote one in the 70s.

    The law will view it that he has an obligation to provide after his death for the people he had an obligation to provide for in his life. This will mean that all 3 children (and any wives/partners) will all have a claim over the estate. It will come down to what was written on the will and who has greater needs.

    If any of your siblings have disabilities or medical issues or if they have drug or alcohol dependencies or homeless etc (things which mean they need the funds and which could save the public purse from having to expend) then this will likely work in that person getting a greater proportion, or could contest for a greater proportion based on their needs over the others.

    Try to resolve between yourselves as lawyers in these situations can be very costly.

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