VIC Will - Can Money Transferred to Bank Account be Contested?

[Wennie]

My husband has 3 kids by 1st wife. He's now 85 and I'm the sole carer. I've got money saved in the bank under my own name and in his will, he's leaving me all money in the bank account and some cash, and also half the house where we live.

Already hearing from some relatives that his daughter is going to contest the will when he dies. He's already telling me to transfer some of the money into my name so that nobody can touch it. But knowing that the will can be contested, is the money under my name be contested too? What can I do to prevent this?

 

[Sophea]

Hi Wennie,

When it comes to family provision claims, the court is able to award monies out of the "Notional Estate" of the testator. This is different to the actual estate of the testator in that , it extends to the deceased person's personal estate beyond those assets which are held solely in their own name at their date of death.

If a family provision claim is made successfully, then their claim is not limited to the assets in the deceased's name when they died it also includes any property that has changed ownership (by being transferred either to another person or to a trust) without full valuable consideration being given to the original owner within 3 years before the date of the Deceased’s death, on the date of death or after the date of death.

Therefore, anything you transfer now would become part of the notional estate.

The best thing your husband can do is write a letter to be attached to his will explaining why he has excluded the daughter and provide valid reasons and make it emphatic that this is his will and his direction and the reasons for that. This will be taken into account by a court when deciding the claim.

 

[winston wolf]

Hi Wennie
It looks like you are in Victoria. If so Notional estate provision do not apply. Notional estate is only used in NSW.
If he owes the house, the house is part of his estate and can be contested.
Perhaps you could clarify "the bank account" and "the house where we live" (joint tenants? tenants in common? his house?)

 

[Sophea]

Good pick up winston wolf!

 

[Wennie]

Hi Wennie
It looks like you are in Victoria. If so Notional estate provision do not apply. Notional estate is only used in NSW.
If he owes the house, the house is part of his estate and can be contested.
Perhaps you could clarify "the bank account" and "the house where we live" (joint tenants? tenants in common? his house?)

Hi Winston,

Thanks for the clarification. Bank account under my name and one joint account, also one under his name. In regards to the house, it is under his name but bought together with the first wife. In the will, he is leaving his share to me and his wife share to his kids.

 

[winston wolf]

Is his 1st wife still alive?

 

[Wennie]

Is his 1st wife still alive?

Died 16 years ago.

 

[winston wolf]

You say "he is leaving his share to me and his wife share to his kids" but there is no wife’s share as she is passed. If the house is 100% in his name and nothing in her will is stopping him freely using the house as he wants.

So your original question was "is the money under my name be contested too?"
The short answer is no. But anything in his name will form part of his estate if a is claim is made and anything he gave to you can be taken into consideration when deciding how do distribute his estate if a claim is made. So if he wants you to have half the house he should transfer half the house to you as tenants in common now. Then will the other half to his children. Of course the risk in this is if you die first then your will etc comes into effect.

 

[Wennie]

You say "he is leaving his share to me and his wife share to his kids" but there is no wife’s share as she is passed. If the house is 100% in his name and nothing in her will is stopping him freely using the house as he wants.

So your original question was "is the money under my name be contested too?"
The short answer is no. But anything in his name will form part of his estate if a is claim is made and anything he gave to you can be taken into consideration when deciding how do distribute his estate if a claim is made. So if he wants you to have half the house he should transfer half the house to you as tenants in common now. Then will the other half to his children. Of course the risk in this is if you die first then your will etc comes into effect.

Thanks, Winston. You have given me an idea of what to expect when this time comes.