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NT Parents' Will after Separation?

Discussion in 'Wills and Estate Planning Law Forum' started by Squirrel007, 28 July 2014.

  1. Squirrel007

    Squirrel007 Member

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    My parent's are separated and will not be getting a divorce however want to make sure their wills leave everything to my brother and I. They basically want to put something in regarding their wishes that any de facto (who may already or not already be in the picture) doesn't claim against their estates. If we are clear in stating why any de factos have no claim, will this help?

    Also they are going to name my brother and I as executors for each of them. This means that we can't sign the wills as witnesses right? Or am I getting mixed up with another states legislation?
     
  2. winston wolf

    winston wolf Well-Known Member

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    You cant write out a de facto as they have the same rights as a wife/husband.
    They should get a divorce otherwise they will have a greater claim to the others estate.
    People change there mind, especially when they start a relationship. It all sounds great until somebody changes there mind.
     
  3. Sophea

    Sophea Well-Known Member

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    Squirrel007,

    You cannot witness your parents will because you are both beneficiaries, the fact you are executors is beside the point.

    Also further to Winston's comments, a family provision claim can generally be made by a child, spouse (present and former), anyone who was dependant on the deceased or someone who was living in a close personal relationship with the deceased before they died. This is basically a claim to inherit some of the estate. Therefore in situations where families split, it opens up a new spectrum of applicants who can potentially claim on the estate.

    There are a few strategies lawyers have to avoid family provision applications, including trusts and non-testamentary gifts - ie. you basically receive your inheritance before they die. For example if they had a property they wished to gift to you and your sibling they could transfer it to a joint ownership between for example your mother, father, you and your sibling. Then when one person dies, it remains the joint property of the other parties. Once both your parents die, it will remain the joint property of you and your sibling. This will avoid the property being administered with the estate.

    I would seek legal advice.
     
  4. winston wolf

    winston wolf Well-Known Member

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    Quick addendum to Sophia comment to avoid family provision applications.
    Those methods will be ineffective in NSW due to the Notional estate provision of the Succession Act.
     

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