‘Can I protect my estate from my daughter AND any new partner of my de-facto?’

Aug 12, 2020
This reader wants to know if she legally has to leave her estranged daughter a percentage of her estate. Source: Getty.

Q. I live in Victoria and I currently don’t have a will. But as I have been in a 30-plus-year de-facto relationship, I am assuming my partner will inherit the house, cars and all material possessions we own. My partner and I do not have any children together but I have four children from a previous relationship and I wish to be advised of my rights concerning those children.

Most importantly, I am estranged from one of my children and do not wish for her to inherit anything from me. I have binding beneficiaries nominated to receive my superannuation and my estranged child is not one of them. I also have an insurance policy, of which my children are equal beneficiaries (except for my estranged child, whose benefit is set at 1 per cent) but which I cannot make binding. I have heard that I legally have to leave a certain percentage of my estate to my children otherwise they can contest a will or my wishes. But is this applicable to a life insurance? My questions are:

  1. Is the 1 per cent enough or can I completely leave her out altogether on the life insurance?
  2. Will any of my children be able to contest a share of any of my partners’ and my own equity in the house, cars and other assets upon my death (with or without a will)?
  3. I’ve brought $200,000 into this relationship while my partner had nothing. So I am wondering if I can have a provision set in place that if, after my death and in the event that my partner remarries, everything be sold and my children be given the equivalent amount that I brought into the relationship, so my partner and any new partner or family he may have do not inherit it all.
  4. Even in the event that he does not remarry, is there a clause that I could have put in a will that upon his death my children can still get what is rightfully theirs?

A. Nothing like a simple, straightforward series of tough questions! I could spend a lot of time and energy answering your specific questions but as I am not familiar with Victorian law, here are some basic concepts you need to understand and which hopefully will provide you with some stimulus to do something about a will as opposed to doing nothing about it.

  • If you do not make a will, in your circumstances, the potential for legal dispute after you die is exponentially higher than if you had done a will.
  • You can make a will in any way you like and give your assets to whoever you want.
  • The law does not require you to give anything to anyone including your children or de-facto partner.
  • Giving $1 to a beneficiary i.e. your estranged child will not prevent them from challenging your will, or your estate if you have no will, and that’s because a person who is entitled to challenge your will e.g., your estranged child, can do so either because you haven’t given them anything or because they believe you haven’t given them enough.
  • Giving $1 to someone in your will is almost guaranteed to make them challenge as it comes across as a slap in the face.

Here’s some free advice – get some legal advice and get a will!

IMPORTANT LEGAL INFO This article is of a general nature and FYI only, because it doesn’t take into account your financial or legal situation, objectives or needs. That means it’s not financial product or legal advice and shouldn’t be relied upon as if it is. Before making a financial or legal decision, you should work out if the info is appropriate for your situation and get independent, licensed financial services or legal advice.

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Is there someone you want to cut out of your will? Are you worried they'll contest it?

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