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Peter G.
Peter G., Solicitor
Category: Australia Law
Satisfied Customers: 767
Experience:  Law degree from the University of Melbourne 1978, with thirty years of practice experience.
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My husband and I separated for a of two years. We have

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My husband and I separated for a period of two years. We have been married for 29 years. I am aware that during the period of separation my husband had his will changed to exclude me as a beneficiary and his estate would be divided equally between our three daughters. We have our residential property and an investment property both of which have mortgages attached to them. The titles and mortgages are in joint names for both properties. If in the event of his death would I be left with the full liability of the mortgages but loose half the equity to my daughters. What happens the contents of our residential home? Are there any other consequences that I should be aware of?

Peter J R Gauld :

Hello, your husband does have the right to make the Will, the new Will, in the way he has.


I think you are aware that owning something "jointly" means that the survivor, the surviving owner, will take the property automatically upon the death of the other owner. You cannot leave jointly held property in a Will. Accordingly, if you were to survive your husband, and the current arrangement was still in place, you would as a matter of law become the owner of both properties, sole owner, and you would be liable for the mortgages. If this occurred, you might well sell the property, or one of the properties, to pay out the mortgage, or mortgages.


You would NOT lose half the equity to your daughters..

Peter J R Gauld :

As said, if your husband predeceases you, you will become the sole owner of the properties. He cannot change this by leaving his share of the properties to his daughters, your daughters, in his Will.

Peter J R Gauld :

What happens to the contents of the residential home? – As things stand at present, you are more than likely joint owners of the contents also, and if your husband predeceased you, similarly you would could become the sole owner of the contents.


But I suppose the question is – will the current situation last for very long, given your separation. Either you or your husband will surely make an application for division of matrimonial property? This will no doubt bring about significant changes in property ownership, and some of these things will sort themselves out by virtue of that.


I have probably left something out – is there anything further?

Customer:

so to verify then the only things that he could will to his daughter would be say assets in his name only such as funds in a bank account, shares, car

Peter J R Gauld :

Yes, that is basically correct – and this could cause problems for you in the event of his death. This is why you should commence the process of property division – this is something you can agree to, even without lawyers being involved, and can be made binding by the family court.

Customer:

we have actually reconciled and are living together again, does this change anything

Peter J R Gauld :

Well, on the basis that you remain together the only issue that seems to arise is if your husband predeceases you and leaves most of his estate to persons other than yourself. This would just give rise to a challenge by you to the provisions of his will – which, if you were not adequately provided for, would likely be successful.

Customer:

Oh and that's how family disputes start!

Peter J R Gauld :

I guess so. But it would be unusual for your husband to have a Will that didn't provide adequately for you. He is just asking for trouble.

Customer:

thanks that clears my mind, perhaps I could suggest to the daughters that his funeral is paid from his funds!!!!!

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