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Estate Planning - Contesting a Will Leaving Estate to One Child?

Discussion in 'Wills and Estate Planning Law Forum' started by Christine Scali, 13 June 2014.

  1. Christine Scali

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    If a person has three children and only one of those children has done the right thing by the parent, and the parent wants to 'Will the whole of their estate' to that child, would the other two children legally be able to contest that will?

    If so, I have heard the way around this is to include the other two children in the Will, giving them a very tiny inheritance from the estate.

    For example (not sure of the correct wording):
    Child one, I leave $1000.
    Child two, I leave $1000.
    Child three I leave the rest of my entire estate.

    Can you please advise how this is legally done?

    Many thanks.
     
  2. haiqu

    haiqu Well-Known Member

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    This won't prevent a challenge if the first two children feel they haven't had a "fair share."
     
    John R and Paul Cott like this.
  3. Paul Cott

    Paul Cott Well-Known Member

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    Christine,

    Haiqu is right. The right to challenge a will basically cannot be taken away, by any method, including by the way the will sets out the entitlements.

    Nearly anyone can challenge a will by arguing basically two things, that the deceased had a duty to provide for the challengers, and the challengers have a financial need that should be met by a provision from the will.

    Hope that helps.
    Paul.
     
  4. Christine Scali

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    Thank you for your post. Much appreciated
     
  5. Christine Scali

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    Thank you for you reply much appreciated
     
    John R likes this.
  6. winston wolf

    winston wolf Well-Known Member

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    There are some ways to get around what is called "Family Provision". It depends on what state you reside and what kind of assets you have.
    I'ts only possible in NSW by going to extreme lengths that I wouldn't recommend.
     
  7. Tim W

    Tim W Lawyer

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    Or you could put it all in a simple testamentary trust.

    Look, when you come down to it,
    drafting a Family Provision claim-resistant will is a job for a solicitor.
    Trying to do it with a Will Kit from the newsagent is a sure path to mayhem.
     
  8. winston wolf

    winston wolf Well-Known Member

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    Unfortunately the above has a serious error.
    It states
    " Courts could make exceptions by safeguarding the rights of dependants including children provided they satisfy certain criteria"
    It is not a requirement in most states that you be a dependant to make a claim on an estate for better provision.
     

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