I leave all my property to my children
Unlike Westerners, the Chinese lacked planning for what happened afterward and even felt guilty even making a will.
In real life, many marriages have survived, which may have lasted for many years; or they were originally second marriages, each with their children from the previous marriage. In this case, it is not uncommon to make a will, but all have a common feature, that is, all are reserved for their children, especially when there is no new child in the second marriage with the second spouse. Many people think that in this way, one spouse can avoid taking advantage of one’s self and protect and explain to their children.
The reality is that the succession of wills is regulated by the laws of the states. Including Victoria, where Melbourne is located, each state and territory has a testamentary succession law called FAMILY PROVISION ( Family Support Clause ). In short, even if the testator ’s true intention is to include a spouse or The children are excluded, and the court can give part of the estate to the excluded family members according to the family support clause. So even if the spouse is excluded from the will by the true and effective will, it is still common to obtain part or even half of the estate.
Therefore, if you simply give your property to your child by making a will, you need to agree with the spouse after the will is made, including the establishment of an effective property division agreement (BindingFinancial Agreement) or apply to the court for an agreement execution order (Consent Orders). If the settlement cannot be negotiated, it must be sued to the Australian Federal Circuit Court or the Australian Family Court to demand the division of property. Only in this way can you effectively show that your relationship with your spouse has broken.
Even if the litigant filed a lawsuit before the death of the testator, and after the commencement of the lawsuit and before the completion of the testator, the testator died, the child or other relatives can continue the lawsuit. In this way, the original will to exclude the spouse will not be challenged by the family support clause.
Joint real estate ( JOINT TENANCY REAL PROPERTY )
It should be noted that there are two main types of ownership of real estate / real estate in Australia, namely Joint Tenancy and Tenants-in-common.
The difference is: the former is indiscriminate, the joint name is common; who survives, who owns. Therefore, even if a will is made, because of the above principles, the testator ’s share can be transferred to the surviving spouse after the death of the testator and become a unique house in his name. The latter is in proportion if it is 50%; then the property can be inherited after the death of the property right.
When most couples buy real estate, some transfer lawyers or transferors (Conveyansor) will ask the couples who will buy, whether they choose joint ownership or shared joint ownership; but in most cases, unless the purchasing couple proposes, they default to joint ownership of.
I have encountered one thing. An overseas investor and two friends bought a house in Queensland. The result was that the local transfer lawyer negligently wrote the form of joint ownership. After the house was delivered, this problem has not been found; if it is early It was found that when applying to the government, the additional stamp duty can be waived. As a result, one of the property owners passed away, and he wanted to leave his share to his wife and children. As a result of the above error, after his death, his share did not belong to the estate and was available for inheritance.
For more information, please call us. During the epidemic, our law firm provides free half-hour telephone / WeChat consultation on family law and testamentary inheritance law.
About the Author:
Zhou Haiyun Harry Zhou
· Master of Applied Law (Family Law)
· Graduate Diploma in Applied Law (Family Law)
· Postgraduate diploma in business law
· Leo Cussen Institute of Melbourne Graduate Diploma in Law
· Law of the University of Queensland
· Bachelor of English and International Trade, Shanghai University
· Member of the Victoria Bar Association
· Chinese and English bilingual services
Prior to joining Pinstone, he had accumulated extensive experience in business, real estate, immigration and family law.
In 2012, he was admitted to practice in the Supreme Court of Victoria and the High Court of Australia in 2017.
Focus on family law. Has handled a large number of custody and property disputes and IVO cases. Good at handling legal aid and family law litigation matters.
It can provide customers with high-quality legal advice and practical solutions to family law issues in a timely and economical manner. If the dispute cannot be resolved, a strong, realistic and comprehensive litigation proposal can be made to the client to achieve the best result.