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VIC Property Left to Grandchildren with Life Interest Given to Children

Discussion in 'Wills and Estate Planning Law Forum' started by AliceSmith1979, 4 August 2014.

  1. AliceSmith1979

    AliceSmith1979 Active Member

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    Hi.

    My Grandfather passed away last year ( my grandmother is deceased). My Gradfather has given in his will life interest in the property to my mum and her sister and when they pass, has devised and bequeathed his property to myself, my brother and my sister (in equal shares).

    My Aunty has no children, and her lawyer has sent a letter saying that she wants to sell the property and take fifty percent and the other fifty goes to my mum. But the house technically down the track has been left to me and my brother and sister. So she is going against my Gradfather's wishes and trying to write us grandchildren who he loved dearly out of the will saying there is no financial provision for her, however she is receiving a very large sum of money as all the assets and money has been left only to her and my mum.

    Where do me and my brother and sister stand? My mum wants to protect Grandpas wishes and our inheritance.

    Thanks
     
  2. winston wolf

    winston wolf Well-Known Member

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    I just want to clarify.
    "however she is receiving a very large sum of money as all the assets and money has been left only to her and my mum"

    So you are saying that she has received a large (how much?) amount of money assets (shares etc?).
    Would it be enough to pay for a retirement home?

    Who lives in the house now?
     
  3. AliceSmith1979

    AliceSmith1979 Active Member

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    The money has not been distributed as she is contesting the will. Money approx 300k (her share) not incl jewellery etc. She has her own home. Property is vacant and currently being used as a weekender btw the two sisters/ families.
     
  4. winston wolf

    winston wolf Well-Known Member

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    This is a curly one.
    It's unusual for somebody to leave a home to people who don't have an immediate use for it? ie they live there.
    A lot could come down to the exact wording of the will. Does the will permit the sale?
    Generally these types of claims occur when the beneficiary has a need for there share to buy into a retirement village etc.

    I cant see how she can demonstrate a "need", which is what these claims come down to.

    "Where do me and my brother and sister stand?"
    You and you sister are beneficiaries under the will and have rights.
    Most judges would say that the testators first duty was to his children, BUT your aunt must show that she has not been adequately provided for before the judge would vary the will.

    Who is the executor?
    What do you think the home is worth?
     
    John R and AliceSmith1979 like this.
  5. AliceSmith1979

    AliceSmith1979 Active Member

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    As the property (950k+) is a country getaway which my grandfather resided in, neither mum or my aunt (both joint executors) would live there but would use it on weekends. The land has been in the family for over one hundred years, and we believe the will was written like this as we feel my grandfather wanted to keep it like this for generations to come. There is no mention about a sale in the will just the life interest to the children until they pass. Many thanks for your responses.
     
  6. winston wolf

    winston wolf Well-Known Member

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    I think this one will come down to the toss of the dice. I it goes all the way to court it will very much depend on what judge you get on the day.
    Unless there are factors of which I am unaware her claim seems tenuous.

    But some judges will choose to re-right the whole will and distribute the estate as a "good and just testator would"

    Having said that it will depend on her attitude as to how much it will cost the estate.

    I would estimate if it went to court and she lost the estate would pay about $100K in costs (cheaper than NSW) so you Mum and aunt would loose $50K each. This assumes no crazy vindictive behavior.

    I also cant see a compromise unless you mum is willing to give your aunt her $300K as go away money.

    Let us know if there are any developments.
     
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  7. AliceSmith1979

    AliceSmith1979 Active Member

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    If she lost in court it seems unfair it comes out of mums part of the estate since she is the one wanting to take it to court in the first place. She is already vindictive, so i think the outcome is going to be unfavourable for us. Thanks for your responses it is very appreciated, will keep you updated.
     
  8. AliceSmith1979

    AliceSmith1979 Active Member

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    Finally there has been some developments. Probate was due to go through last week (and I assume the equal distribution of monies) between my mum and her sister. She has officially contested the will, and has citied lack of provisions for her. Would a judge look at her being in a defacto relationship, having numerous properties between them and regular overseas holidays etc if she is claiming need?? Also we assumed to contest a will she needed to withdraw as an executor of the will before probate date, and if so did this need to be done through my grandfathers solicitor who was handling the will or can it it be done through her private lawyer?
     
  9. winston wolf

    winston wolf Well-Known Member

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    She doesn't need to relinquish executors-ship before probate as probate is just the court saying this will is valid and go ahead.
    I'm not sure if she would relinquish executors-ship during the challenge but would have to have one team(solicitor/barrister) for the estate and one for her.

    As to need this is a strange thing to tie down as it is a question in the end of her V grand children.
    So the judge may say an old lady has more "need" than a healthy grand child?
    Or they could say she has enough to sustain herself and the will should stand unchanged? Who knows???
    I could write pages of different scenarios.
     

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