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Complex family situations and contesting a Will

We live in a time where ‘blended’ families and complex relationships are increasing. People are also living longer and are generally wealthier through superannuation and investments than in previous generations, which means that Will and estate disputes are becoming more common place.

The most high-profile situation at present involves the family of former Australian Prime Minister, Bob Hawke. Leading Wills & Estate Litigation Expert at Shine Lawyers, Tracey Ryan, recently spoke with News Corp and her views have been published in leading newspapers across the country.

The Hawke family

When Bob Hawke passed away in May earlier this year, he left his estate to second wife Blanche d’Alpuget. In an agreement separate to the will, Ms d’Alpuget gifted Mr Hawke’s three children, Stephen Hawke, Susan Pieters-Hawke and Rosslyn Dillon, as well as her son, Louis Pratt, each $750,000.

Rosslyn Dillon has said she will contest her father’s Will and Shine Lawyers’ Tracey Ryan agrees that now is the time to act, as down the track the multimillion-dollar estate could potentially be passed on to her stepbrother. While $750,000 may seem a lot, it’s only a very small part when considering Mr Hawke’s vast multimillion-dollar fortune.

Children in New South Wales, like Rosslyn Dillon, often only have one opportunity to seek further provision from their late parent’s estate. This is because the NSW family provision legislation does not include a category for stepchildren as eligible people to contest. In the likely scenario that Rosslyn Dillon is not included in Ms d’Alpuget’s will, she would need to prove that she was dependent upon Ms d’Alpuget to contest the estate after she passes. This means that Ms Dillon will only have one opportunity to claim her inheritance and so she has no option but to contest her father’s estate now if she requires further provision.

“In Queensland stepchildren can contest a Will but in New South Wales there is no provision for stepchildren to contest, unless they were wholly or partly dependent on the deceased at any time,” Tracey explains.

“In New South Wales there is ‘notional estate’ so you can claw back anything that was given to someone within three years of death if it was transferred wholly or partly with the intention of limiting a Will contest, or otherwise within one year of death.

“That includes jointly owned bank accounts, jointly owned properties and superannuation that came from the deceased to the recipient.”

Even if Mr Hawke’s children did decide to attempt to claw back from the estate later on, there may be nothing there if Ms d’Alpuget decided to give away most of the estate which she may be entitled to do.

In blended families it’s not uncommon for the surviving person to benefit their biological children more or even give them the entire estate. The situation may have been avoided if Mr Hawke and Ms d’Alpuget had had mutual Wills, which is effectively an agreement not to change the Will after the death of the first survivor.

Do you have the right to contest a Will?

Find out by completing our checklist or contact Shine Lawyers Wills and Estates team for a confidential, obligation-free consultation.

Written by Shine Lawyers. Last modified: August 8, 2019.

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