VIC Will Husband's Inheritance be Passed on to His Wife?

[Jackiev]

I am located in Australia...

My mother-in-law has a will directing that after her death, her property be divided among her three sons. Two of her sons are married, one with children, one with a stepchild (who is 42) and one without children.

My questions is: if the one married son with a stepchild dies and then subsequently his mother (my mother-in-law) dies, does his (my husband) inheritance pass to me (his wife) and/or the stepchild?

 

[Victoria S]

Hi Jackiev,

The general rule is that if a named party in a will dies before the testator (writer of the will), the gift fails and goes back into the estate - so it will be shared between the two other sons. However s45 of the Wills Act provides that if a testator makes a gift to a child and they die - (where normally the gift would fail) but they have "issue" (or children) then the gift will not fail but will be passed on to their issue. I'm not 100% on this, but I suspect that step children are not included as issue, unless the step parent has adopted them as his or her own. Then they will become issue entitled to the gift. As a spouse you have no rights to it.

 

[Jackiev]

Hi Jackiev,

The general rule is that if a named party in a will dies before the testator (writer of the will), the gift fails and goes back into the estate - so it will be shared between the two other sons. However s45 of the Wills Act provides that if a testator makes a gift to a child and they die - (where normally the gift would fail) but they have "issue" (or children) then the gift will not fail but will be passed on to their issue. I'm not 100% on this, but I suspect that step children are not included as issue, unless the step parent has adopted them as his or her own. Then they will become issue entitled to the gift. As a spouse you have no rights to it.

Thanks so much for the info...

I suspect that my mother-in-law should add a codicil or a supplement to her will, outlining that if the son predeceases her that his gift should go to the wife. Does that sound right?

 

[Tim W]

You want a document that will avoid partial intestacy, and
that will be resistant to any family provision claims.
You especially want to avoid confusion caused by a tangle of
codicils, annexures, extrinsic documents and disputed statements.

Your mother should make a new will, drawn up by a solicitor,
who will help her account for all the options and possibilities,
and make sure that the document clearly and expressly
reflects her wishes*

I strongly encourage her to engage a solicitor. DIY will kits are a false economy, and
I take every opportunity to advocate against their use.


-----------------------------------------------
* Lawyer-speak for this is "reflects her testamentary intentions".

 

[Jackiev]

You want a document that will avoid partial intestacy, and
that will be resistant to any family provision claims.
You especially want to avoid confusion caused by a tangle of
codicils, annexures, extrinsic documents and disputed statements.

Your mother should make a new will, drawn up by a solicitor,
who will help her account for all the options and possibilities,
and make sure that the document clearly and expressly
reflects her wishes*

I strongly encourage her to engage a solicitor. DIY will kits are a false economy, and
I take every opportunity to advocate against their use.


-----------------------------------------------
* Lawyer-speak for this is "reflects her testamentary intentions".

Thanks so much for your help... I guess it can potentially become very complicated. I will definitely take your suggestion.