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NSW Inheritance Rights - Exclude?

Discussion in 'Wills and Estate Planning Law Forum' started by Will Armada, 30 April 2015.

  1. Will Armada

    Will Armada Member

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    Hi there,
    I have some general questions in regards to family inheritance.

    The background scenario is:
    My parents have 4 children, and we believe my sister married to a total loser with gambling habit leaving debts everywhere.

    Their relationship itself is in question (he was an illegal immigrant, and parents believe my sister was "forced" to sign the marriage certificate in detention centre).

    Basically our parents wish to exclude her from the inheritance so the husband cannot benefit from it. Another thing is my sister herself is not mentally capable to handle this situation. She is 42 YO but has the mental capacity like a kid.

    I am representing my parents looking for some generic information for now to give us some base understand of the family law in Australia before we see a lawyer for a proper consultation.

    1. By default without any will how the deceased assets are distributed?

    2. Do my parents have default right to exclude my sister out of the inheritance in their will? and can she or her husband contest the will?

    4. Will divorce between my sister and her husband automatically exclude her husband from benefiting the inheritance? What happen if they re-marry after my sister receives inheritance ? will the husband has legal access to the inheritance?

    5. If my sister (& husband) decides to contest the will, is it through that the cost of the legal proceeding is taken from the inheritance fund itself?

    6. Do other siblings have the rights to defend our parents' will?

    Much appreciated if you can assist, as we have no idea at all about family law, and some of the questions might be obvious.

    Thanks guys!
     
  2. winston wolf

    winston wolf Well-Known Member

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    Hi

    1. Have them get a will then it wont matter. Its complicated.
    2. Yes BUT she can make a Family Provision Claim. As a child she has an automatic right to claim. He has no claim unless he is or has been dependant on them.
    4. If she receives a benefit from their estate, he has a claim on it as he has on any other income she may receive.
    5. From you description if she claimed on the estate the estate would most likely pay.
    6. The executor defends the will not the beneficiaries.

    This sound complex so let us know where you need clarification.
    I tend to be brief:)
     
    John R likes this.
  3. bluetongue

    bluetongue Well-Known Member

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    Sounds like you should be considering a testamentary trust for the share of your parents' estate that is left to your sister.
     
  4. nswlegal

    nswlegal Member

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    The Succession Act NSW at Section 57 defines the eligible persons who may make an application to the Court for a Family Provision order which is an order adjusting the interests that are created by a will. Besides family members, a person who was, at any point, either partly or fully dependent on the deceased person may make an application. So, if your brother-in-law had been a dependent, he would be considered an eligible person. I hope this helps.
     
    John R likes this.
  5. Will Armada

    Will Armada Member

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    Thanks for the information so far guys, I think we need to take it further and consult a professional.
     
  6. nswlegal

    nswlegal Member

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    Good luck with it.
     

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