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Fairness and inheritance

Discussion in 'Legal Issues' started by Terry_w, 2nd Oct, 2015.

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Would it be fair for a parent to die and leave everything to Child A and nothing to Child B?

  1. No, all children should be treated equal

  2. Yes, the parent should have complete freedom to determine where their assets go

  3. It depends on the circumstances

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  1. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

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    Would it be fair for a parent to die and leave everything to Child A and nothing to Child B?

    Please vote and i will tell you about a recent court case where the father died and left approx $523k to the daughter and nothing to the son.
     
  2. wylie

    wylie Moderator Staff Member

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    I'm not happy to choose any of those options. There are problems with all of them.
     
    hobo likes this.
  3. Nemo

    Nemo Well-Known Member

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    I know a family where the family farm worth millions was left to one son and nothing to the other.
     
  4. Scott No Mates

    Scott No Mates Well-Known Member

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    I know of one family where they can't agree on the split - there's 10+ million at stake.

    They want to distribute in different proportions though each has worked for the family business in different capacities.

    Another has given $x00,000's to one child who's lived overseas for the last 40 yrs and parents want to leave the other 2/3 to the other adult children. Nothing documented on what was given to child #1.
     
    Last edited: 2nd Oct, 2015
  5. Darlinghurst Boy

    Darlinghurst Boy Well-Known Member

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    It can be done but its necessary to state in the Will the reason why your leaving to Jim and not to John.
     
  6. Random Username

    Random Username Well-Known Member

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    Does the law say it must be fair?
     
  7. wylie

    wylie Moderator Staff Member

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    It can be done with very good reason and clearly explained. But if it is challenged you might as well have saved your time and effort. You will pay the lawyers and/or the person challenging.
     
  8. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

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    This is incorrect.
     
  9. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

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    There might be good reason why you should not put the reasons in the will
    - It might be an invalid reason
    - A will is a semi public document once you die

    It may be better to leave a separate document, ideally a statutory declaration of affidavit, outlining valid reasons such as dis-entitling conduct.
     
  10. Hodor

    Hodor Well-Known Member

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    There are situations when b should be able to be applied. Not sure how the law views things however.
     
  11. KayTea

    KayTea Well-Known Member

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    This is going to be interesting - I'm looking forward to reading the article/post @Terry_w
     
  12. legallyblonde

    legallyblonde Well-Known Member

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    Oh this will be a good read!
     
  13. vtt

    vtt Well-Known Member

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    Hi Terry

    I'll be very interested in this. My aunt passed away a couple of years ago, she had no children, parents had passed away many years ago and she was estranged from her only living siblings.

    She had 3 nieces and 1 nephew (I am one of the nieces). One of the nieces (Niece 1) lived geographically close to my aunt and she nursed her during her illness and also had a strong lifelong relationship with her. The second niece (Niece 2) and nephew live in a different country, my aunt visited them during her lifetime but they never visited her or had any contact with her aside from those visits. A few months before her death my aunt had a very big fall out with Niece 2.

    Then there is me. I'm the other niece (Niece 3). I live the furthest away geographically, in another country. However I also had a close relationship with my aunt, I would visit her every year and when she was well we travelled together in her country. I also maintained contact with her by phone, email and letter and also visited her several times when she was suffering from the illness that eventually took her life. I also donated my bone marrow which was used in a transplant for her, this kept her alive for about a year longer than without the transplant. Out of all of the family only myself and niece 1 agreed to be tested for bone marrow compatibility. I was the only compatible donor.

    In her will, she left the majority of her estate to Niece 1. She left the next largest portion to myself. The other Niece (Niece 2) and nephew received nothing. She left nothing to her siblings.

    Interestingly Niece 2 and nephew contested the will saying that it was not fair. They even travelled to the country where my aunt lived (the first time they had ever visited that country) to present their case to the judge. Myself and niece 1 were unaware that they were planning to contest the will, and didn't learn of the judgement until we received a letter from the executor of the will.

    The outcome was that the will was overturned and each niece/nephew were given the same portion.

    I didn't do what I did to get myself into her will, in fact I assumed that she would leave everything to niece 1 as they were the closest, so I was surprised to be included at all. We are also not talking about a large amount of money.

    Could this sort of thing happen in Australia? How can a person make sure that their wishes are executed and minimize or eliminate the possibility of the will being contested?

    vtt
     
  14. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

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    Vtt

    Which jurisdiction was that in?

    In NSW a niece would not be able to mount a family provision claim unless they living with her in a close personal relationship at the date of death or are a dependant.

    The will may be challenged on other grounds such as being invalid - which if it was then the intestacy rules would apply which would then probably mean neices and nephews share equally if there were no other persons with closer blood relations. In such a situation it wouldn't matter what the relationship with the deceased was like.
     
  15. MTR

    MTR Well-Known Member Premium Member

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    Duty of care,??

    We have friends going down this road after big $ to lawyers.

    will look at net worth of each individual and work out how to distribute accordingly
     
  16. hobo

    hobo Well-Known Member

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    Sorry, MTR, can you clarify, please? D you mean that you will look at each of your offspring's current (at that time) financial situation (net worth, if you will) and then allocate inheritances so that you basically try to re-balance the totals??
     
  17. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

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    Who has a duty of care and to who?

    Lawyers have a duty of care to the client and beneficiary or potential beneficiaries. e.g. if someone wants to change their will to leave it to X and Y gets it then Y could sue the lawyer.

    But testators have no duty of care under the laws of negligence.
     
  18. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

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    If you mean a parent has a duty of care to look after children then this would be a family provision type claim.
     
  19. MTR

    MTR Well-Known Member Premium Member

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    Friends scenario - yes, will look at all siblings and their financial position and this will determine how they will distribute. Duty of care
     
  20. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

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    I think you are mixing up things here.

    The courts will consider a number of things, one of which is their net financial position of all beneficiaries and claimants or potential beneficaries it won't determine how the estate will be distributed. And it is not a duty of care.