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Father's Will - What are the Rights of Adult Children?

Discussion in 'Wills and Estate Planning Law Forum' started by JulieY, 4 May 2014.

  1. JulieY

    JulieY Member

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    Our case is this. Father has been estranged from family for years, lived in NSW and recently passed away. He made a will but we understood he did not get legal advice. We are overseas residents. What are our rights in terms of the Family Provision Act in Australia? Do we need legal representation in Australia?

    We understand that there are five beneficiaries, two are unrelated, ie friends, (one fixed amount specified in will, the other a 33% of the balance), one by marriage (33% of the balance) and two of us are his children but not living in Australia (17% each of the balance). All other beneficiaries are Australian residents.
     
  2. winston wolf

    winston wolf Well-Known Member

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    The legal advice doesn't make much difference, but the wording does.
    Is there a reason why you think it would?
    As a child of the deceased you are entitled to a copy of the will.
    This has no effect on your claim.
    As children of the deceased you are automatically a valid claimant so you wont be disqualified from making a claim because you are and adult.
    To be successful you need to show that you were not adequately provided for. This is decided by looking at the size of the estate and your financial situation.
    Yes

    The other beneficiaries "rights" are very complicated depending on their relationship with the deceases, including how they helped him in life etc.

    This is a very expensive thing to do. If it goes to court it goes to the Supreme Court.

    What is the size of the estate.
    What are you financial situations?
    If a new wife is the other beneficiary(33%) you are unlikely to take anything from her unless she is independently wealthy.
     
    John R likes this.
  3. JulieY

    JulieY Member

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    Thank you, Winston. We do not know the amount involved but had been advised by the executor that it is not large. We can only assume it would be in the $200k region in total. My financial situation is average however my sibling's is not great. We have limited funds and could not easily afford to get over to Australia. We have been providing for ourselves since he left and as it was an acrimonious divorce, we had had no contact with him until the week before he died. His wife passed away several years ago. The 33% is to a adult stepchild.
    In relation to appointing a solicitor to represent us, what is the timeframe that we are looking at here? What would the costs be? (A ball park figure would help a lot). Can you or are you able to provide names of some legal firms in the area?
     
  4. winston wolf

    winston wolf Well-Known Member

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    You wouldn't need to come to Australia, you could just do an affidavit stating you positions.
    From what you say and assuming the stepchild is not well off and the estate being small it would play out as follows.
    You can find plenty of lawyers to take on a case, remember the lawyers will get paid. Just Google challenge will.

    I would say if you challenge the will you may end up with less or at best the same. If you start with $200K take $40-$100K off for legals and divide the remainder between yourselves and you sister in law. Your sister in law gets a bit less(or more if she helped out you father) you get the same and the other get nothing.

    Normally estates under $500K the only winners are the lawyers.

    NSW is the easiest to contest but also the most expensive.

    Hopefully somebody else can add some opinion?
     
    John R likes this.

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