Will and codicil query

[custardbear]

Hi
My mum and her partner had a will each, simple one, reflected mirroring decision that the estate is divided equally between their children (2 children each so effectively into quarters).

My mum died first, a few years ago.

Partner has just died. He's now apparently done a codicil a few days before he died which means

1. Original eldest child is no longer the executor, it's the solicitor who is now doing this role (they're based in Australia by the way, children all in UK)
2. Partner added that a new person (relative) be given 20k from the estate

So apparently this new person is given their money then the rest is split between the four children. However my mums original will said that the estate should be divided equally between the four children, no discussion of the other family member getting a significant chunk of the estate - is that right?

Me and my brother both assumed it would be 20k taken from the partners 'half' that goes to his children

To me it looks like he could essentially have done anything to the will after my mum died and her will had no significance after she died? Surely it's a legal document and he can't just negate what my mums wishes are?
Thanks

I don't know anything about Australian inheritance law I'm afraid, so I think you are going to have to take some proper legal advice from someone in the country.

If this was in England it would depend on the exact wording of your Mum's will and I suspect the same holds true in Oz - have you got a copy of your Mum's will or can you get it from solicitors? She may have left everything absolutely to her partner with an expressed wish that he then leave the estate to be divided equally between the 4 children, or she may have left it 'in trust' or as a 'life interest' in the property, with her 'share' being left between her 2 children and his share being his to do as he likes with. The latter is legally binding, so as you say he could only then change matters like leaving extra money from his 'half', whereas the former is only a wish/suggestion, and the money is actually his to do whatever he likes with including totally disinheriting you (again this would be in England, Oz may have different rules about disinheriting children).

I am guessing it will depend on what your Mum chose to do at the time she made the will, you'd think she'd have taken whatever option absolutely ensured her wishes were guaranteed to be followed through (after all you do hear stories of even quite elderly people remarrying and leaving everything to the new spouse), but then again creating trusts and life interests etc is more administrative hassle, may have come with more costs, may have placed more burden and difficulties on the surviving partner re things like selling the house if they ever wanted to move, or if the money was needed to cover care costs, and she may have been advised/persuaded it would be more straightforward to simply 'trust one another' and both leave the whole estate to the survivor absolutely in which case you may be screwed...

I assume there isn't any question of this codicil being made under duress or when your mum's partner had already lost capacity? Again don't know about Oz law but in England you could contest the codicil on those grounds but it would be a long and expensive road to go down, probably swallowing up the £20k and more in costs.

@maxelly
Thank you for your response - much appreciated.
I've looked at the will, it's his will because my mums is with my brother who is in holiday but they were mirrored apparently.

A few snippets:-
I give my de facto partner life interest in my half share of our principal place of residence at the time of my death subject to paying taxes /giod tenable repair etc (not exact wording)

My trustee (who is named as my brother, executor) to obey request to sell the property

I direct My trustee that if my partner wants to sell our house and purchase replacement property on same trusts (irrelevant here as house never sold )

I direct my trustee they the purchase if a replacement property in the same trusts can mean an Interest in a retirement home whether strata titles or otherwise and may include leasehold license it being my intent the that the word property has the widest possible meaning

Upon the life interest ceasing then the property shall pass in accordance with clause 3

Clause 3
I give the Remainder of my estate to my trustee to sell call in and convert to money with power to postpone such conversion and from the proceeds of such sale calling in and conversion etc after payment of testamentary expenses and funeral debts, to hold and rest in residue of my estate for (names of all children here)

Goes on to say trustee has all powers that a trustee has by law under trustees act 1962

Another clause about trustee having power to appropriate in kind any asset to or towards satisfaction of any share or interest of any person (s) in this will without the consent of such person and without regard to differences in asset cost bases for capital gains tax purposes so that any appropriation is condone on all persons entitled under this will

The codicil, in brief, says
I delete clause 1 and appoint 'solicitor' as executor and trustee

I delete clause 2 and give £!!! To xxxxx (his family member outside of original will)

All other respects I confirm my said will

Would this codicil be upheld for both his and my mums wills? Can my mums partner just bump my brother as executor and trustee to both his estate and what should be my mums half share?
Also can they give this random relative money that would be Half my mums (my mum didn't know this person)
Do we need to see a solicitor for advice do you think?
Thanks in advance

Yes it sounds very much as though you need legal advice, from an Australian solicitor if they are in Australia and the wills/distribution of the estate fall under Australian law - as far as I know it's fine for the partner to have wanted to appoint his own solicitor to deal with his estate (otherwise you'd get silly situations where an executor was named by a long-deceased partners will who may be unable or unwilling to act or even dead themselves), but as far as I can see your mother's share of the money looks likely to have been left in trust by your mother's will and so may well not be his to dispose of - it may be as simple as the 'new' solicitor isn't aware of this and simply thinks the whole estate is the partners. Although (again, under English law, Australia may be different), the will could only do what it purports to do (ie give a life interest in a property to a partner but held on trust for the children) if the property was either owned outright by your mother or jointly owned as tenants in common, whereas many married couples own property as joint tenants in which case it automatically passes absolutely/outright to the other owner on the death of one of the couple. That's something which should have been clarified when the will was made, or certainly at the time of your mother's death (given that your brother was named as trustee and was presumably executor also?), but worth double-checking?

A first step could be for your brother (is he the same brother who is the trustee named in the will?) to email across a copy of your mother's will to new solicitor and highlight the fact that you believe a trustee exists and the trust 'owns' at least part of the estate?

Thank you @maxelly - yes that's I
My only brother who is executor and trustee. There was a previous solicitor they used, my brother had their details so I'll ask him to perhaps speak to them for some clarity on this.
Thanks for your advice, much appreciated 🌹

I've just realised your bit above about marriage, the solicitor asked earlier for their date and place of marriage, but they were not married. Perhaps she thinks the situation is different?!

I've let her know. My brother had also emailed to say he doesn't agree as executor and trustee of mums will - fingers crossed it doesn't get costly and horrible

Surely it's a legal document and he can't just negate what my mums wishes are?

It sounds like you don’t understand what mirror wills are.

In English law (no idea about Oz, it may be different), there is no legal connection, it just means that the wills are written similarly. They are still 2 completely separate legal documents. Your mums was applicable only when she died. Her partner’s will is the only one applicable now. Your mums is irrelevant.

So in your case, your mums Partner could have changed his will after her death and left everything to his kids or the dogs home, and you would have no comeback.

The only way for your mum to guarantee that you got something was to leave you it directly in her will.

I think you are very lucky to still be in his will, unless a mirror will is treated differently in Australia!

As a pp said, you need to get advice on the law in Australia regarding mirror wills. But I suspect it is the same as here.

This is why so many children get dis-inherited if their parent dies first, and the step-parent changes their will and leaves everything to their own children.

I’ve just realised that your mums will had a trust for her half of the house, so some of her will is still valid now.

However, my comment still stands about mirror wills - there was nothing to stop her partner changing his will regarding the executor, and to give some of his money to a different relative.

What he couldn’t do, is give away the half of the property bequeathed to you by your mum. So as long as the 20k didn’t come out of your half of property, then his will is fine.

To me it looks like he could have essentially done anything to the will after mum died and her will had no significance after she died?

He can do anything he wants to his will at any time. Mirror wills are two separate legal documents that are the same / similar at the time they are written, but they are not “connected” to each other and either person was free to amend their own will at any time.

Your mothers will would have been dealt with after her death. If she wanted say investments / cash to be given to you and your brother then she should have done that directly at the time, not merely express a wish that her partner left you assets after he died. It does sound like some assets e.g. share of property were placed in a trust for you and your brother though, so this is relevant and cannot be distributed to anyone else. But everything else, included adding another beneficiary and removing your brother as executor is perfectly fine.

Australia recognises defacto relationships, so if they have lived together for 2 years or more they are likely to be effectively treated as a married couple UNLESS they have a written agreement to not be - lack of financial interdependence (reflected in property being left in a trust) could negate it.

Also, a defacto partner only has 2 years to seek legal recompense - so if your mum died more than 2 years ago - and he didn't make a claim against the estate and accepted the will and trust, he cannot just write another will ignoring it.

You really do need an Australian lawyer - it's too complicated if they argue against it.

A one off letter from an Australian lawyer might get them to back down.