Traps in estate inheritance
Two recent cases reveal traps in the laws governing estate inheritance that everyone should be aware of.
In the first case a young couple married for three years had a messy break-up. The man found a new partner and they had been together for fifteen months when he suddenly died. He hadn’t made a will. They weren’t divorced and had no children.
His estranged wife had served divorce papers on him as she had intended to marry her new partner. But he hadn’t signed them. A partner is recognized as a de facto only after two years or they have a child together. As a result under the Succession Act his estranged wife gets his entire estate. The man’s partner and family aren’t entitled to a thing.
The case ended up in court because the man had earlier paid his wife $35,000 for her share of the house they had built on land he owned before the marriage. The man’s family claimed the payment ended any entitlements for the estranged wife and the law was giving her “two bites of the cherry”
Joshua Crowther, wills specialist at Stacks Law Firm, says the case demonstrates the importance of making a new will when a couple separate to take account of the possibility of dying before the divorce goes through. If the husband died with an old will, the effects of divorce would have revoked his estranged wife as a beneficiary. (For more information please see Does marriage or divorce automatically revoke a will?)
A second case highlights problems that can happen when an unscrupulous person enters the life of a vulnerable elderly person. An 82 year old woman left everything to a stranger, a cleaner who befriended the elderly lady after she was diagnosed with dementia.
The brother who saw her every day was devastated. In this case police investigated and found the will had been forged and the cleaner was part of a gang that had done this to several elderly people. But sadly leaving estates to virtual strangers happens more often than you would think.
Joshua Crowther says families have a few options. A person making a will needs to understand what they are signing. A person’s mental capacity and health at the time of signing can be challenged.
The will maker needs to understand who they have a moral obligation to provide for at the time of signing the will. There must be no undue influence on them. Spouses (including de facto spouses) children and certain dependents of the deceased can also challenge the will.
“The key is to get expert legal advice when making a will so that all eventualities are covered,” he said.