Losing legal right share due to desertion

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Bronte

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Where there is a will that does not take into account the legal right share of the spouse, can the executor decide not to accord that share due to desertion. Would the length and circumstances of desertion matter. I realise 2 years is the requirement. In this situation it's much longer.

What are the executors rights in relation to this. Can the spouse question this, and in what way. Can they stop the application for grant of representation. Or otherwise interfere.
 
The executors should seek a Court Order to properly protect their position. This ends all arguments.

mf
 
What kind of court order and how much would it cost? If one doesn't do this what can the spouse do against the executor after the fact?
 
Like most things, I'm afraid, it depends.

I'm sure it could cost up to 5K - so much depends on the circumstances.

What can the spouse do? Claim their share. It wasn't desertion - it was a separation.

mf
 
The estate is too small to spend 5K.

Does a barring order have a time limit on it. How would one find that out from a long time ago. The early ninties about.
 
Bronte said:
Where there is a will that does not take into account the legal right share of the spouse, can the executor decide not to accord that share due to desertion. Would the length and circumstances of desertion matter. I realise 2 years is the requirement. In this situation it's much longer.

What are the executors rights in relation to this. Can the spouse question this, and in what way. Can they stop the application for grant of representation. Or otherwise interfere.
Click to expand...

Would you believe I am in the process of doing up our Wills and have a document here which outlines the procedure for Separated and Divorced people.

It states:

"If you are separated or divorced from your spouse, then your spouse will remain entitled to receive their legal right share unless agreed otherwise under the terms of a separation agreement or a judicial separation order, or cancelled by a court order made when you divorced. Your spouse will also cease to be entitled to a legal share if he/she has remarried."

It goes on:

Spouses Legal Right Share:

"Under the succession act, if you die leaving a spouse he or she will be entitled to receive a specific minimum portion of your estate irrespective of what you have stated in your will".

"Your surviving spouse will have the option of choosing to take either his/her legal right share or whatever has been left to him/her under your will.Normally, a spouse will only elect to take the legal right share if they have been left less than their minimum entitlement under the deceased spouse's will.

Your spouse will have 6 months from the date on which the executor notifies him/her of his/her entitlement to receive the legal right share to make a decision. if your spouse has not elected to take the legal right share by the expiry of those 6 months, he/she will be obliged to accept whatever has been left to him/her under your will".

I would imagine that the spouse would have to contact the executor inform him/her of their existence and then move on from there.

I have looked again the Executor is " obliged" to grant your share, there is no need to go to court.
 
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@Bronte - just taking what @mf1 said and turning it slightly - presumably the fear the executor has is the spouse will claim that (s)he did not desert. And the spouse would have to act and not the executor. But it could be challenged - balance whether thats likely or not. And what are the facts known to executor.
 
All the spouse has to do is turn up. It would be up to the executor (or, more properly the beneficiaries) to seek an order that the spouse not be paid. The executor is not competent (in a legal sense) to make the decision as to whether desertion occurred or not. If no such order exists, the executor is obliged to pay out to the spouse.
 
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