My father in-law (Bob) died late last year, and leaving a will that was written 10 years ago. In of which, his defacto wife (Jill) of 12 years was left a property (that is no longer owned) which was worth just under 1/3 of his estate. He left the rest (a third each) of the estate to my wife and her sister (both executors along with their father's best friend (Bill)). Given the spirit of the will (and previous discussions with their father), the girls felt Jill should get another property (her current residence) which was worth over the original that she was left in the will. Jill has disagreed and informed us through her lawyer that she wants 4/5 of the total estate. The majority of the estate (besides interest) was earned before Jill was on the scene and she has not contributed anything. As we're currently overseas, and dealing mainly with Bill who's relaying information back and forth between Bob's solicitor, we're a little unsure as to where to take this and what our rights vs Jill's rights. The girls are happy to let Jill have any money she's entitled under law, and wondering if 4/5's a little high, especially given their dad's explicit reminder that they were entitled to everything up and beyond the original property. Any advice? What are defacto wifes entitled to? Should we be talking to our own solicitor? If so, should the girls share the same one? Or get a different one? Many thanks
Hi Dave This is a complex situation. In a will if someone leaves a house (or anything) in their will then the person sells that house before their death then that gift will fail. This is called ademption. Show Jill should get nothing. But, there is a possibility that an ex defacto can apply under the Family Provision sections of the Succession Act (not sure what act in WA) if they have not been provided with adequate provision under the will. The fact that the relationship ended 10 years ago and many other circumstances are taken into account so she may not be awarded much even if it goes to a hearing. Certainly not 90% of the estate. Costs in these matters can be large but usually come out of the estate. As executors the girls need to resist this and to uphold the will. But they are also beneficiaries and will want to resist her claim to make sure they don't lose out. I think the beneficaries could save money by all having the same lawyer for this. Maybe try to settle the matter sooner rather than later to reduce fees. In NSW mediation is compulsory before a hearing but not sure in WA.
Thanks. She was his de facto wife at the time of death after being with him for over 12 years. I'm trying to find exactly what she should be entitled to under Victorian law, but I can't find it. Basically, we would prefer to settle this via arbitration if possible and give her exactly what she's entitled to - but we're unsure if 80% of the estate is well over that. On that, what's a good way to get in contact with a lawyer that specializes in this? We live overseas, and none of our friends/family have any good contacts.
Hi Dave Sorry, if she was defacto at death and for 10-12 years prior then she has a high chance of getting a high amount. There is no formula for determining how much she is entitled as this will depend on a whole heap of factors such as needs of her and other beneficiaries, current income levels, current assets, relationship with deceased, ages etc for Vic see Administration and Probate Act 1958 - SECT 91 Power of the Court to make maintenance order If you want a lawyer specialising in this in Vic try Mooreslegal.com.au they are one of the best firms down there.
