VIC If Will is Contested - Is It a Sure-win Case?

[petermark]

The parents' will:

We have 2 houses (house A and house b). We have 3 children x, y, z. After we die, child z has house A. children x, y have house B.

Then the parents gave house A to child z. Child z owns the house for years. Then the parents died.

If child z contests the will, and asks to get 1/3 of house B, is this a sure-win case? Since the parents only have house B under their name at the time they died? So their deceased estate should be distributed in accordance with the laws of intestacy.

 

[Sophea]

Hi petermark,

If child z contests the will, and asks to get 1/3 of house B, is this a sure-win case?

Answer to this is no. I assume that you are talking about child z bringing a family provision application. The court will take everything into account when determining such a claim and will see that he or she has already received an inheritance while parents were alive. The court will only grant such an application where it is satisfied that sufficient provision has not been made for the person who is applying. So on the contrary, based on the very limited facts and basic scenario you have provided I believe child z's chances of succeeding in such an application are not that great.

Since the parents only have house B under their name at the time they died? So their deceased estate should be distributed in accordance with the laws of intestacy.

An estate is only distributed in accordance with the laws of intestacy if there is no will. When determining a family provision application the court is not bound by or confined to what a child would receive if the estate was distributed under laws of intestacy in determining what is fair. Often this is far from the case, and many other factors are taking into consideration.

 

[Jacqui Brauman]

Not a sure-win case. Family provision claims have tightened up in Victoria in the last 12 months with the law change, and there are a lot of factors that are in consideration, particularly in relation to adult children making claims. But the sad fact is that there are still solicitors out there that will bring a claim in the hope for a "go-away" payment, to make sure money.

 

[petermark]

Not a sure-win case. Family provision claims have tightened up in Victoria in the last 12 months with the law change, and there are a lot of factors that are in consideration, particularly in relation to adult children making claims. But the sad fact is that there are still solicitors out there that will bring a claim in the hope for a "go-away" payment, to make sure money.

1) Thanks for your answer! First, This is my mistake. The case is in SA, not in VIC.

2) You said: "But the sad fact is that there are still solicitors out there that will bring a claim in the hope for a "go-away" payment, to make sure money".

I represent myself.

3) What is chance for child Z to win the case? 50%?

 

[petermark]

Hi petermark,


Answer to this is no. I assume that you are talking about child z bringing a family provision application. The court will take everything into account when determining such a claim and will see that he or she has already received an inheritance while parents were alive. The court will only grant such an application where it is satisfied that sufficient provision has not been made for the person who is applying. So on the contrary, based on the very limited facts and basic scenario you have provided I believe child z's chances of succeeding in such an application are not that great.



An estate is only distributed in accordance with the laws of intestacy if there is no will. When determining a family provision application the court is not bound by or confined to what a child would receive if the estate was distributed under laws of intestacy in determining what is fair. Often this is far from the case, and many other factors are taking into consideration.

I was told if the will is not legal. The the law of intestacy applies.

Is the will is legal?
-- The parents only have house B under their name at the time they died.
-- And one more point, the will is signed by only one witness.

 

[Sophea]

I was told if the will is not legal. The the law of intestacy applies.

Yes that's true, if the will is invalid then laws of intestacy apply. However a will would not be invalid simply because one of the gifts has already been given. That gift would fail, but not the whole will. It would just be read as though the clause gifting house A was not in there.

The issue of the will only having been signed by 1 witness however may cause issues and cause it to be declared invalid by the court. I think in another of your posts, someone wrote about the requirements for a validly made will under the Succession Act.

 

[petermark]

Yes that's true, if the will is invalid then laws of intestacy apply. However a will would not be invalid simply because one of the gifts has already been given. That gift would fail, but not the whole will. It would just be read as though the clause gifting house A was not in there.

The issue of the will only having been signed by 1 witness however may cause issues and cause it to be declared invalid by the court. I think in another of your posts, someone wrote about the requirements for a validly made will under the Succession Act.

Thank for your answer,

1) My question is that since when the parents die, they only get House B under their names.
For House A, does "ademption by extinction" applies?

2) Can you tell me what the chance is for Child Z to win the case? More than 50% or less?

 

[Sophea]

My question is that since when the parents die, they only get House B under their names.
For House A, does "ademption by extinction" applies?

Yes

Can you tell me what the chance is for Child Z to win the case? More than 50% or less?

No - it's impossible to tell not having been briefed with all the facts and circumstances of the matter.

 

[petermark]

Yes

No - it's impossible to tell not having been briefed with all the facts and circumstances of the matter.

Thanks for reply.

-------------------
Peter Mark: My question is that, when the parents died, they only get House B under their names.
For House A, does "ademption by extinction" apply?

Sophea: Yes.
---------------------------------

So. the laws of intestacy apply?

 

[Sophea]

Ademption of a gift doesn't render the whole will invalid, which would require the intestacy laws to be invoked, however the other issues you mentioned with regard to the will not being executed properly may do so.