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2nd Family

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jaybee View Drop Down

Joined: 28/June/2006
Location: Australia
Posts: 3
  Quote jaybee Quote  Post ReplyReply Direct Link To This Post Topic: 2nd Family
    Posted: 31/August/2006 at 18:48
This problem is the opposite way around to many of those I've been reading about here.  I am a second wife with two near-adult children by my husband.  He also had three children from his first marriage.  During a long and acrimonious divorce from wife number one, she 'cleaned him out', as they say, and left him in debt.  When we got together he was still in debt and it  took us a long time to recover, and we have also had a few other misfortunes along the way.  Our situation at the moment is that if my husband were to pass away, there isn't any spare money to leave to the first three children without impoverishing me (we still have a sizeable mortgage). Without wishing to sound mean-spirited, I know for certain that if my husband died she would come after me (and the children) for a share of the estate, which would be small enough as it is.  My husband's Will leaves his first three children with a modest amount of money each, but with most coming to me.  She is a very vindictive woman and I worry that she could tie me up in court or claim a larger share than we could afford out of sheer malice.  Can she do this? Would the court take into account the fact that we're not well off, and is there anything I can do to protect myself?  Any advice would be very much appreciated.

rambler1 View Drop Down
Legal Guru
Legal Guru

Joined: 01/May/2006
Location: Australia
Posts: 1918
  Quote rambler1 Quote  Post ReplyReply Direct Link To This Post Posted: 01/September/2006 at 11:46

 Former spouses ( who are not getting maintenace) are not entitled to contest a will so I wouldnt worry about it if he has a valid will which is important she cant contest it.

 If his first three children are provided for even modestly then they cant contest either.

As an aside any beneficiary  even the former spouse can contest a will it will depend if they have any chance of success which in your case is unlikely. their lawyer will  probably advise them not to proceed. However you may need defence against a claim 

 I dont think you have anything to worry about but if your still  not sure see a lawyer


Edited by rambler1

DwyerDurack View Drop Down

Joined: 16/March/2006
Location: Australia
Posts: 12
  Quote DwyerDurack Quote  Post ReplyReply Direct Link To This Post Posted: 01/September/2006 at 12:07

Dear Jaybee

Both your husband's children and his former wife (if she was entitled to receive maintenance) are entitled to make a claim against the estate. The Court gives priority to the needs of  a widow, so it is likely that, all things being equal, they would not succeed. However, you are still likely to incur legal fees arriving at that conclusion.

The only absolute way to guard against such a claim is to ensure that there is nothing in the estate when your husband dies. That means either having property in joint names with you or alternatively holding it in a trust.  There are implications in arranging his assets in that way, and it would be best if you contacted us directly to discuss it.


Dwyer Durack


Dwyer Durack
(08) 9289 9888

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