VIC Estranged Brother Contesting a Will - What to Do?

Discussion in 'Wills and Estate Planning Law Forum' started by Stevemin, 20 June 2017.

  1. Stevemin

    Stevemin Member

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    My sister and I are both executors and major beneficiaries of my late father's deceased estate. My estranged brother of over 20+ years is now contesting the will.

    He has responded (through his lawyer) and as yet has not provided an affidavit of his claim. Over the years he has not made any attempt to communicate or reconcile with my late father even though I tried on occasions to bring them together. In fact he made no attempt to attend my parents funeral ( their death was separated by 10 months ) and in a phone call after my mother's passing he asked me to not bother him anymore when Dad passed.

    He is contesting the will and without seeing his affidavit I am concerned that there will be suggestions that Dad was the instigator and that caused him to remove himself from the family unit, but Dad is not able to defend himself.

    I am being advised that he will most likely ask for an equal share and we should either mediate or make him a small offer of the estate beforehand but either way as beneficiaries we end up losing.

    My questions are does he really have an entitlement (given he chose to be estranged) and how much if we consider our debts to be equal or more than his ?
     
  2. Lance

    Lance Well-Known Member

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    Hi Steve,

    I think you will find he does have an entitlement. I'm not sure what that would be but it will either be determined by mediation or by the courts. He will probably go for an equal share because he has nothing to loose other than a portion to his lawyer.
     
  3. Stevemin

    Stevemin Member

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    Thanks Lance,

    It does make me wonder why we push people into getting a Will drafted when it's really not worth the paper its written on when the Will maker's wishes are not adhered to and as a joint executor I have little control in ensuring his wishes are fulfilled which becomes pointless.
     
  4. Rob Legat - SBPL

    LawTap Verified

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    Because, basically, without one the government will determine who gets what. It's common practice in many wills now to include reasoning why someone is not getting a bequest, to limit or preclude challenges occurring.
     
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  5. winston wolf

    winston wolf Well-Known Member

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    I am interested in this as I thought recent changes(improvements) to Victorian law may have stopped this kind of claim.
    See this Changes to Victorian laws covering Wills now in operation | Aitken Partners
    An eligible person is defined as:

    • the spouse or domestic partner at the time of death;
    • a child of the deceased (including an adopted or step-child or someone who believed the deceased to be their parent and was treated as such) who, at the time of death, was:
    o under the age of 18;

    o a full-time student under the age of 25;

    o suffering from a disability.

    • other children of the deceased not referred to above (i.e. adult children). However for these claimants there is an additional consideration for the Court being the degree to which these children are not capable of providing adequately for their own maintenance and support;
    • a former spouse or domestic partner who was eligible to make a claim under the Family Law Act 1975 but either had not yet done so or such proceedings were not finalised and the claim cannot proceed after death.
    Further eligible persons include the following, only if they were dependent on the deceased for their proper maintenance and support:

    • a registered caring partner;
    • a grandchildren;
    • the spouse or domestic partner of a child (i.e. son or daughter-in-law) of the deceased where that child has died within one year of the deceased’s death;
    • a person who was or had been (and was likely to be in the near future) a member of the deceased’s household.
     
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  6. Stevemin

    Stevemin Member

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    Thanks everyone for your replies.

    I am assuming my brother will request an equal share and I want to resolve where possible without going to mediation to avoid any additional legal costs. Given he is contesting the Will is it fair to assume he would be responsible for his legal costs including his mediation expenses or are all these expenses payable by the "estate" ?
     
  7. Lance

    Lance Well-Known Member

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    Hi Steve,

    If he has a good lawyer they will try to get it paid by the estate.
     
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