When close to half of all marriages end in divorce, it is no wonder that a lot of focus in estate litigation is surrounding split families
A split family is where there is a mother or father that has remarried at least once. These sorts of family dynamics seldom work in complete harmony especially when money is at stake when a loved one dies.
Often a married couple will have “reciprocal Wills” meaning that upon death, the entire estate goes to the spouse. If this is your mother and father then probably you don’t need to fight the Will when one of your parents die because when the other one dies, you will have a chance to dispute the Will as a child of the deceased.
However, if the marriage is your parent and a step-parent, unless you are legally adopted by the step-parent, you can only hope that your parent survives the step-parent. The reason being, once your parent dies, your only chance of receiving any estate from your parent is through his/her estate at the time of passing. If you do not take action, and the estate proceeds pass to your step-parent, that person can simply change his/her Will to exclude you from the estate despite the fact that a large amount of the estate was actually derived from your parent’s hard work. Indeed, it does not matter if your step-parent says he/she has every intention to provide for you because as soon as your parent passes away, and you do not challenge the Will, your step-parent can take the money and run. That is because there is no legal obligation for a step-parent to provide to their spouse’s children.
In a situation where your own mother or father has two different sets of children from two different spouses, the law actually allows the Court to favour one set of children from one marriage over the other set of children where most of the assets were accumulated during a certain marriage and not the other.
In summary, split families often see the children receiving unfair distribution of assets from his/her parents. The battle for a share of your parent’s assets is at the time of his/her death. You cannot rely on promises from the step-parent to provide for you as you cannot enforce those promises if the step-parent does not honour them.
Obligation to a Spouse Under the Will
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