SA Grandchildrens' Right to Deceased Parent's Inheritance

[Nanzy]

Hi all
I hate talking about death, wills and money in the same sentence. This stuff makes me saddened beyond belief. My mum passed away in 2005. At the time my grabdparents had my mum and her sister as 50/50 beneficiaries.

From my belief once my mum passed the will was changed so my mums three children then divided that share - but nothing was ever confirmed. My mum's sister is very clever and has always been very obvious on her hunger for money. My grandma outlived my grandpa and recently passed away.

What would be a fair and normal settlement?

There is:
My Aunty and her two kids
My mum (deceased) and her three kids
6 grandchildren.

My grandma would have never wanted mums share to be touched and mum would be devastated if out Aunty takes her half and we are not included.

What would be a normal situation here and if we have been excluded or given very little - what do we do? As my Aunty is executor of will - should she have already told us out percentage?

Thanks for any help.

 

[Sarah J]

Hi Nanzy,

I am very sorry for your loss and the situation you now find yourself in.

May I ask, did your mum draft a will before passing? Also, did you mum have a spouse or domestic partner?

Anything belonging to your mum should be inherited by her estate, which consists of a spouse/domestic partner and/or any children. Therefore, you, along with your brothers and sisters, who make up the estate of your mum, should inherit her share in your grandparents' will.

However, this will depend on how your grandparents structured their will. If it is in the form of a trust (wills are a form of trust) whereby your mother and her sister (your aunt) are beneficiaries as joint tenants of the property, then there is a thing call "right of survivorship" which means that when one party under the joint tenancy dies, their share becomes the property of the other joint tenants without passing on to the deceased's estate. If, however, the will in the form of a trust whereby the parties hold the property as tenants in common, then there are undivided shares allocated to each party. This means that where one party dies, their share under the trust becomes inherited by the deceased's estate.

If your grandparents' will has words to the effect of "50/50 shares" or "equal and divided shares" or alike, then the trust will likely be a tenancy in common and your mother's share under your grandparents' will will likely pass on to yourself and your siblings (as your mother's estate).

These pages from the Legal Services Commission of South Australia will be able to provide you with further information as to what you need to do after your mother's passing:

- If your mother did not leave a will;
- If you mother did leave a will;
- Distribution of your mother's estate.

 

[Nanzy]

Thanks for your advice.
My grabdparents had a will and changed it before my mum died to state that her share goes to her children (my mum was still with my dad at time of death and he nursed and cared for her) and this upset my mum dearly and I don't know if they then changed it.
My mum passed away and there is no will or estate as my dad is still with us.
My papa then passed away and my Aunty then took my grandma from adelaide to Canberra to live with her and since then I have no idea what has been changed etc.

As an executor of the will, when the deceased passes would they normally advise immediately to the beneficiaries that they are in fact a beneficiary and what there percentage is?
All she has said is that she saw her solicitor and they have all documents and there won't be a settlement until probate but expected to be settled by October?

How would I ask these questions to my Aunty without seeming like I am trying to get money (if it were my choice I would rather there be no money to be inherited but for my mums sake, her greatest fear was that my Aunty would take it all and mums family would be not taken into consideration.

My dad is freaking out as he knows how much this meant to mum.
What do I do?

 

[Sarah J]

Hi Nanzy,

You have a few separate questions here:

In relation to the estate of your mother:

- The estate usually consists of the deceased person's spouse/domestic partner and any children. Therefore, yourself, your siblings and your father will inherit your mother's property, including her share, if any, in your grandparents' will.
- See my post above for further discussion of this.

In relation to what share your mother has in your grandparents' will:

- This will depend on what the nature of will your grandparents made when your grandfather was still alive. 1) If they made a joint will, then property reverts to your grandmother upon your grandfather's death but the will already specifies what will then happen to the property upon the subsequent death of your grandmother. A joint will crystallises the will upon the death of the first person, meaning that the surviving person cannot subsequently alter the will and change what will happen to the joint property after the death of both parties. If there is no joint will, then whether or not your grandmother has power to unilaterally change the will after your grandfather's passing will depend on whether or not the joint will property was held "in survivorship". 2) If so, then when your grandfather passed, all his property would transfer to your grandmother (as there are no separate and distinct shares in the property) and your grandmother will be taken to own the whole share of the property. Your grandmother may unilaterally change the will and subsequently deal with the property as she likes. 3) If property is not held "in survivorship", meaning that your grandfather and grandmother each held separate and distinct shares in the property, then upon your grandfather's death, his share reverts to his estate pursuant to his will, and your grandmother's share may be dealt with as she pleases, including changing her own will as many times as she likes.

In relation to contesting a will:

- If you believe your grandmother may have made a revised will under your aunt's influence, you may contest a will upon your grandmother's death. You may contest a will on the grounds that your grandmother (the testator) lacked the mental capacity at the time of making the revision; did not understand the will she made; the will was not the final version; your grandmother was under undue influence or pressure/force of someone else; the will was not properly signed/witnessed.
- Here is an information sheet on how to contest a will: invalid wills.
- This is a very technical and complicated area of law and I would suggest you speak with a legal representative experienced in wills and probates.

In relation to obtaining a copy of the will:

- This can be done only after the person has passed. You may lodge an application only after the will has been lodged with court and a probate has been granted by court. Therefore, since your grandmother is still alive, you cannot challenge the will or force your grandmother/aunt to show you the will as it may not be final and your grandmother still has opportunity to revise it.
- However, as your grandfather has already passed, if he has a separate will, then you may request to see this.
- Here is an information sheet on how to access a copy of the will: getting a copy of the will.

 

[Nanzy]

Thanks again for your advice.
My grandma passed away on July 2nd.
I guess the main thing to know is if the will is the South Australian one (then I would know nothing has been altered) or if it was redone in ACT? Which is where my Aunty moved my grandma too once my papa passed as that's where my Aunty lives.
Everyone says just ask my Aunty.
But I feel wrong doing it as I don't care about the $$ - I just have to know that she wouldn't do that to us. Because my mum would not be in peace if she has.
Is there an avenue I can ask without seeming that I want $$ or insinuating she would alter it? Does a will have to change according to the state you live in? Any suggestions would help me I am stressing very much over this.

 

[Sarah J]

Hi Nanzy,

Again, I'm sorry for your grandmother's passing.

I agree with the people around you and suggest speaking with your aunt and explaining to her your concerns and situation. If you and your father are distressed over this situation and are only looking out for your mother's wishes, then I'm sure your aunt should be able to understand.

If you absolutely do not wish to speak with your aunt, there is not much that you can do without having your aunt find out. As mentioned earlier, you may request to access a copy of the will upon your grandmother's passing. This is done by making a request to the Probate Registry of the Supreme Court after the probate (application to court to declare that the will is the final and valid version of the deceased's wishes) has been lodged by the will's executors and has been granted by court. As explained in the information sheet I attached above (accessible here), this process could take a few months. Until a grant of probate has been made by the Supreme Court, a will is private property and will not be readily accessible. The only way to access it before the probate is to try and ask the executors of the will (most likely your aunt).