At Hume Taylor & Co Lawyers, we are often asked to advise clients as to whether an estranged adult child can be left a smaller portion of the Estate than their other child or children, or left out of the Will completely.
The answer is highly dependent on the testator client’s circumstances.
It is not unusual for parents to become estranged from an adult child. This may happen as a result of physical and/or mental abuse, disapproval of lifestyle choices, a negative relationship with the adult child’s partner, and many other events that can lead to resentment and lack of closeness.
Generally speaking, all people have ‘testamentary freedom’, such that they are free to make a Will to leave their Estate to whomever they wish. This freedom is constrained by legislation which allows certain people to claim that they have been left with inadequate provision. Adequate provision must be made for any adult child who may have special needs and exhibits no contrary conduct (wherever that is possible) which would otherwise dis-entitle them. In many cases, provision should be made for all adult children, however their needs may differ from one another and therefore it may be appropriate to make unequal provision.
Relevant provisions are contained in the Inheritance (Family Provision) Act 1972 (the Act).
The Act allows for “eligible people” to make a claim upon your estate should they not receive what they consider to be adequate provision under your Will. This includes “a child of the deceased person”, amongst other relatives.
The adult child who has left out of the Will or not properly provided for in the Will is entitled to make an application to the Supreme Court for an order that proper provision be made out of the estate for the maintenance, education or advancement of that adult child.
The court has a broad discretion based on the facts as to how much of the Estate (if any) shall go to the adult child.
The court will decide based on a number of criteria, including:
- The current financial situation of the adult child;
- The adult child’s likely future needs (including their health, age and future earning capacity);
- The length of estrangement between the deceased parent and adult child;
- The reason for estrangement and whether the adult child made a reasonable and genuine attempt at reconciliation;
- Whether there has been ‘disentitling conduct’ by the child;
- The size of the deceased’s estate;
- Whether there are other children or family members needing of provision from the same estate.
It is possible you can leave your adult child out of your Will if your adult child is able to adequately provide for themselves regarding their maintenance, education and advancement in life including retirement. A Will is not automatically invalid or inappropriate due to leaving a child out.
Similarly if there are a number of needy children and there is not enough in the estate to satisfy everyone’s needs then the court may accept a testator choosing between needy children because it is not possible to satisfy everyone’s needs.
Possible Solutions
The first is to cut them out, and give reasons in your Will or a contemporaneous explanatory memorandum. This won’t necessarily prevent a claim, but it shows that you have reflected on it and undertaken it deliberately. To support this, you can also leave detailed notes for your executor through your solicitor, and your solicitor would make careful notes on their file.
If a claim is made against an estate, the deceased testator is not going to be alive to explain or defend their decision. They cannot give evidence, so it often ends up being the adult child’s evidence against the executors (and the executor often doesn’t have sufficient details themselves). So, to assist your executor, you need to leave as much evidence behind that your executor can use.
Remember, any documentation going to your executor through your solicitor is confidential and should be safely stored on file in case it is required as evidence. Hume Taylor keep closed will files in safe storage indefinitely at no additional charge to clients.
There are certain steps that can be taken before death to make it difficult for the adult child when contesting your will.
Things you might consider include:
- Structure your affairs so that some assets are not part of your estate. This might include changing property titles to joint tenants and having joint bank accounts, so that when you die the assets transfer directly to the other holder, rather than becoming a part of the estate;
- Transferring all or some or all of your assets to the intended beneficiaries while you are still alive. This can be a particularly risky thing to do while you are still alive, and can have complex financial and taxation implications. Talk to your solicitor and accountant about this before committing as it may affect your current situation;
- A discretionary trust could be established during your lifetime. Assets placed in trust become assets of the trust and are therefore separated from assets of your estate. This may again have complex financial and taxation implications.
There may be stamp duty and other financial imposts to restructuring assets during your lifetime, but to spend some money upfront to protect the inheritance for the intended beneficiaries may be worthwhile.
Hume Taylor & Co Lawyers are well experienced in advising clients in these circumstances. We ensure all relevant factors and likely eventualities are considered. We personally tailor your will so that your intentions and wishes are considered and carried out, and the risk of litigation or other adverse consequences is minimised. To speak to one of our estate planning lawyers today, contact our office on 8223 3199.
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