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Patrick H.
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 4538
Experience:  Dip Law LPAB - Sydney based lawyer
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I have lost my partner of 15 years today. I dont know the

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I have lost my partner of 15 years today. I don't know the details of his will but he did tell me that he had left his estate to his children 44 and 38. I know he has left me one of his supperannuation policies. I think it was valued at about $50,000. I am 69 and sold my house in 2003. He asked me to do this and said he would sell his own and we would buy together. He never did. Shortly afterwards the WA boom started and house prices went berserk. In 2006 when I 62 I retired. He said he was going to too. He never did but slowed down just a little bit. Although I was old enough to get a pension, I didn't get one because he was still working. I had to use my savings or some of them to manage. When we did get a pension it was only a part pension of around $220 per fortnight because he was still earning. When he got very sick and vunerable, I think his ex-wife and daughter got to pressure him to write a will in his children's favour leaving me homeless. His wife is the executor. I have looked after him all by myself at home all through the day and night until 18th July when his son came over from Melbourne. His daughter hardly ever came and when she did, it was only for a few minutes. I always drove his dad to her house. Yesterday she came and decided she was going to stay the night in my bedroom with her dad. She didn't ask if I minded. What are my rights of inheritence. I was next of kin on his hospital papers. I did everything I could to make his life as pleasant and stress free as possible. All our details with Centre Link are as partners. I am sure his daughter and ex-wife have orchestrated this situation
Submitted: 1 year ago.
Category: Australia Law
Expert:  Patrick H. replied 1 year ago.
Hello and thank you for your question.

If the will has made inadequate provision for you as the deceased's spouse you may be entitled to make a claim under the Family Provision Act.

Under this Act the court, if it is satsified that the terms of a persons will have made inadequate provision for a party, such as yourself, the court may alter the disposition under the will:

http://www.austlii.edu.au/au/legis/wa/consol_act/fpa1972209/s6.html

The court will have to weigh up various factors including the size of the estate, the merits of your claim to a greater share compared with the claims of other competing beneficiaries.

The courts generally presume that proper provision should be made for a spouse unless the spouse is already in a good financial position and/or other competing beneficiaries have strong claims.

Although only a fully briefed probate lawyer can give you firm advice as to your likely prospects of making a successful family provision claim, based on what you have said, it would certainly be worth your while to investigate your options and would strongly recommend you engage a probate lawyer to review your case in detail. If your case is compelling enough, and you are properly represented, you may very well be able to negotiate a settlement with the other beneficiaries without needing to take the matter to a court hearing.

There is no law which automatically entitles a child of the deceased to occupy the property, or a spouse for that matter, and is the executor of the estate only that is empowered to decide who can and who cannot stay in estate property. However, in practice the executor is unlikely to order a spouse to move out or to stop a child staying at the residence because such will inevitably cause damage to family relationships and prompt such persons to take legal action to contest the position of the executor. Indeed, if a court later finds that the party ought to have been permitted to stay, it is possible that removing them might result in a financial claim on the estate.

If you need assistance locating a suitable lawyer contact the WA Law Society as they can refer you to suitable lawyers in your area:

http://www.lawsocietywa.asn.au/

Also be aware that if you are to challenge the distribution under the will as described above the court application should be made before the estate is able to be administered (i.e. after a grant of probate or letters of administration) as after this date it may not be possible to effect a claim, and the sooner the better.

I trust the above assists.

Please rate my answer so I can be paid by the website operator.

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Thank you and good luck.

Patrick
Customer: replied 1 year ago.

Patrick thank you. I am worried that the executor is the one person who can decide who stays in the house as she is his ex-wife. I did not split them up. They had been separated 7 years before we met. She is going to be on the side of her daughter and son.

Expert:  replied 1 year ago.
Then I would recommend you engage a probate lawyer with a view to making a family provision claim ASAP.

If your case is strong enough you may be able to get court orders allowing you to stay, at least until the court makes a final decision regarding the estate.

I trust the above assists.

Please rate my answer.

Thank you,

Patrick
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 4538
Experience: Dip Law LPAB - Sydney based lawyer
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