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Lawyer Says, “Leave The Will Alone”

In her Will, the deceased women gave her second husband the right to live in her home, free of all cost apart from rates and insurance, for the rest of his life.

The Will provided that after his death the house was to be sold and the proceeds divided between the three adult children of her first marriage. The deceased and her second husband did not have children of their own. The second husband was aged 60 of the time of his wife’s death and was living in her home throughout the marriage. Although, the children of the first marriage had the right to claim a better share from her estate they chose to make no claim. Despite his right to live in the home for the rest of his life the second husband was not satisfied and made a claim to full ownership of his late wife’s home. By lodging his claim for a greater share the second husband gave each of the three children an opportunity to claim further provision for themselves which they did.

When the parties and their Solicitors met to resolve their differences, it became clear that the cost of the debate could not be met out of the small cash estate left by the deceased. The cost of all parties with legitimate claims is usually paid out of the estate assets and the home had to be sold to meet the legal expenses and the claims of the three children. In the end the husband ended up with only a small sum of money, far less than needed to buy an alternative home. It was a poor result for him because he and the new wife he married only months after his first wife’s death, lost the opportunity to live cost-free for the rest of his life in a home they could call their own. The children, on the other hand, received their share of the mother’s estate many years sooner than they could have expected to receive it.


© Delaney & Delaney Solicitors. This publication is for information only and is not legal advice. You should obtain advice specific to your circumstances and not rely on this publication as legal advice. Should you have any queries in relation to this publication, please contact our office on (07) 3236 2604.