VIC Can Step Mother Contest Dad's Will?

[Ruby6]

My step mother wants to challenge my father's will. The will says 50% to her and 25% to each child of my father. There is no child to my step mother. She is aged 70 and my dad was 90. They were together 22 years.

My father left her with no debts and his house to live in till she died or decided to sell. He left all his cash around $50000 and his personal possessions. Step mum is claiming she hasn't been left a nest egg or been adequately provided for. The house is worth around $600000. She is claiming dad's two children have already been provided for by way of a property that was put in our name when we were teenagers by our mum and dad?

This property was sold 10 years ago whilst dad was remarried. Can that property be deemed a gift and that we have already been provided for? The property generated $100000 in rent that dad and his 2nd wife were given from us . Has the second wife got a claim to contest the will?

 

[winston wolf]

I would say she is in with a good chance.

To some extent it depends on the following.

• The other beneficiaries need.
• Can she maintain the property with here resources.
• Her health(expect it to get worse soon)

The property you received will be part of the mix.

The trouble I see is if there is only $50K in cash in the estate, that's not enough to fund a claim. Therefore even if she were to win or loose the home may have to be sold to pay the legal costs.

 

[Ruby6]

Oh thanks for that. Not what I wanted to hear. Surely dad's children should get something? Considering the previous will was a third each and it was changed around the time dad started getting dementia. Does that make any difference?

Dad did his best to ensure this sensation never happened to us. How can the law do this?

Do you think she has a chance to contest the will or she has a chance of getting the whole house?

 

[winston wolf]

The outcomes could vary on many details. Once you exchange affidavits where both sides disclose their position(finances etc) you will know more.

I would suggest that if she got the home then you would get here estate on her passing. There are ways of doing this.

If he made his will early when he was diagnosed with dementia, that may have been specifically been done so that he could demonstrate that he was of sound mind. As soon as you have dementia doesn't make you incapable of sound judgment.

 

[Ruby6]

Thanks very much for your reply, we will look into your suggestions. I would say the will change was when we started to question dad's coming cognitive decline. Well the dr did write a medical certificate but he is more a bulk billing dr, so not really sure if he was assessed properly.

Should we progress with probate or is it not in our best interests till we get advice from a barrister ?

 

[winston wolf]

I cant see any reason not to progress with probate unless you want to question the validity of the will on the grounds of his dementia.
Of course get advice from a solicitor. Look for a wills specialist as there is a challenge in the wind.

 

[Ruby6]

We do have

The outcomes could vary on many details.
Once you exchange affidavits where both sides disclose their position(finances etc) you will know more.
I would suggest that if she got the home then you would get here estate on her passing. There are ways of doing this.

If he made his will early when he was diagnosed with dementia, that may have been specifically been done so that he could demonstrate that he was of sound mind. As soon as you have dementia doesn't make you incapable of sound judgment.

Sorry I have another question.

What if she sells the house ?

 

[Arche]

If the house is still in your father's name or in joint names she cannot sell it.

Going by what you have said, once probate is granted and the house transferred to her name, then she could sell it.

Yes go and see a solicitor if you are concerned.

 

[Ruby6]

The only way it can get transferred to her name is if she goes to court and wins full land title. At the moment, the will says she can live in the house till she decides to sell or die. If she sells it needs to be divided between herself getting 50% and my sister and me getting 50%. She wants to contest the will as soon as probate is granted.

We are three co-executors - not sure what to do for the best ?

 

[Arche]

I cannot see that someone saying they are going to challenge a will is any reason for the executors to delay making an application for probate. For all you know she might not do anything.

You would be best advised to round up the other executors, grab the will and go see a solicitor, even if just once, so that someone who has read the will and is familiar with Victorian law can answer all your questions.