Step son faces difficult claim

The Greek Goddess of Justice, known as Themis.
The Greek Goddess of Justice, known as Themis. Rae Wilson

MARK and Karen were recently married in 2015.

They each have two children to previous relationships.

They are looking to buy property together and talk to their solicitor about making new wills.

They decide to make "simple" wills appointing each other as executor and leaving the whole of the estate to each other.

Their wills also make provision for the survivor to divide their estate equally between all of their four children, upon their passing.

A couple of years later, Mark, aged 60, is involved in a motor vehicle accident and passes away.

Mark's son, Daniel seeks legal advice.

He is informed that although Karen has made a will that ultimately makes provision for him, there is nothing preventing her from changing her will before she dies and leaving Daniel out.

He is also informed of the risk that Karen could give away her assets or deplete them during her lifetime, with the effect that Daniel's share of her estate could be very small.

There is also the risk that Karen may enter into another relationship and that the future spouse could ultimately receive a significant portion of her estate.

Daniel is also informed that because he never lived with Karen, despite him being her step-son, if she did change her will, he would not be eligible to make a claim against her estate.

Daniel is faced with the difficult decision as to whether to make a claim against his father's estate. The limitation period is 12 months. Daniel does not wish to upset Karen during this difficult time but is conscious of his young family's future needs.

Proper estate planning may have prevented this problem.

If you would like Manny to address a particular legal issue, send your request to or call him on (02) 6648 7487.


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