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Children Left Out of a Will in Favour of Second Wife

Children Left Out of a Will – Northern Beaches Lawyers successfully obtained orders that children of the deceased be granted a share of his real estate despite the fact that a Will made shortly before his death left everything to his second wife. This is a case that shares features with a number of cases we have acted on where parties have remarried, having had children from a previous marriage. The deceased usually made a Will leaving his estate equally to all his children, only to have that Will revoked shortly before his death, in this case following a terminal illness, in favour of the surviving spouse and excluding all his children.

The terms of the Will were unequivocal and excluded the children, and the solicitor who drew the Will produced notes which indicated that he saw the deceased and his wife at the same time that the Will was made. Prior to making the Will, the deceased had informed his son and his daughters that he was making a new Will and that they would be provided for and receive part of his real estate. This promise was set against the family background of when the children’s mother had separated from their father, formal family law property settlement had not been entered into on the deceased’s promise to provide for the children on his death. The second wife was appointed executor and sole beneficiary under the Will, and applied for Probate quickly and distributed part of the estate almost immediately.

We commenced proceedings in order to preserve the children’s inheritance, and were able to obtain orders that the children be recorded as part-owners of the real estate with the second wife. This allowed for the surviving wife to live in the property as she was elderly, but upon her death or the sale of the real estate, the children would be entitled to their share of the proceeds of sale. By securing the children’s interest on the legal title of the property, our clients were guaranteed that the property could not be sold behind their backs or mortgaged without their knowledge or consent. As our clients were all relatively young adults they would benefit from an increase in the price of Sydney real estate so that they could accommodate the surviving spouse’s need for a home in her latter years.

We are also pleased that we were able to negotiate the terms of settlement at mediation without the requirement and expense of a Court hearing before a judge at trial.

This case illustrates that notwithstanding that a valid Will has been made with a solicitor leaving all of the deceased’s estate to a particular person, the law provides remedies if a person is left out of a Will. It is important that they act quickly however to secure those rights by filing a claim upon the estate.

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