How best to prepare will to leave out an estranged child

Rod Cunich tells how best to prepare to avoid a challenge.

Cutting estranged child out of will

David and his wife say they have tried unsuccessfully to reconnect with an estranged child but that it is time to review their will and leave them out. Rod Cunich offers guidance.

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Q. David

I would like to know if my wife and I can leave an adult child out of our wills due to no contact in almost nine years despite us having attempted to restore the relationship. We have heard conflicting statements and we now have reached the point where we are about to renew our wills and we need accurate advice.

A. The short answer is yes. That said, a child, even one who has been estranged for a long period of time, can challenge the will claiming that you made inadequate provision for him or her.

A court takes into account about 20 issues when making a determination, including the size of your estate and the needs of the estranged child. It is a complex matrix of facts that a court will consider.

It is not uncommon for estranged children to succeed in such an action, particularly if they are in need of money.

The legislation allows you to make a statement – usually in the form of a statutory declaration – setting out your reasons for leaving out the child. This can help greatly in fending off a challenge. 

You should consult an estate planning expert, who can review your circumstances in light of the issues a court would examine and advise you if you have good grounds to defeat a challenge. 

A specialist can also prepare the appropriate statement for you if he/she determines it would be helpful.

You could consider transferring assets to other beneficiaries, but this has to be done with great caution due to the cost of transfer and potential taxation implications. 

If your property is in NSW, complex claw-back provisions apply which could undo any such transfer made within three years of death – again an issue best explored with a specialist who has all the facts.

Rod Cunich is a lawyer with more than 30 years’ experience in estate planning. If you have a question for Rod, email it to newsletters@yourlifechoices.com.au.

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    Disclaimer: This information has been provided by Rod Cunich and should be considered general in nature. Seek legal advice before acting on this information.

    These answers are general information only, not specific legal advice. You should not rely on these answers without specific advice from an expert who can review all the relevant documents and circumstances.





    COMMENTS

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    Paddington
    15th Jan 2019
    10:37am
    No, don’t do it! That particular child could cause great grief to the other children and grandchildren and you won’t be there to help. Nine years is not a long time anyway. Some are out of the picture for decades. It is a negative thing to do. On the other hand, if the child in question is not a bad person he/she may come back to the family fold eventually and a move like this is unwarranted then. . Either way, the action will have repercussions after your demise!
    Cassius
    15th Jan 2019
    11:13am
    What ever happened to a persons rights? Why should anyone apart from dependants have any claim on my hard earned cash, you should be allowed to do whatever you wish with your money, the only possible exception being dependants.
    Anonymous
    19th Jan 2019
    12:30pm
    Of course, Cassius. But we HAVE NO RIGHTS. Not even when we are dead and buried.

    15th Jan 2019
    11:25am
    Crazy laws, adult children should get nothing if that is your choice
    KSS
    15th Jan 2019
    12:27pm
    You can do whatever you want in a will. There is just no guarantee it will be upheld in a court should the estranged son decide to challenge it.
    Paicey58
    15th Jan 2019
    12:58pm
    Cash up early and give it to whomever you want.
    You also get to see the pleasure it can bring whilst you are still on this earth.
    Gypsy
    15th Jan 2019
    1:24pm
    Best way to go! Help your Kids etc out now & watch them enjoy the benefit. Leave just enough for your funerals.
    sunnyOz
    15th Jan 2019
    1:28pm
    Yes, that's what I want to do! Just wish I knew expiry date!
    JB
    15th Jan 2019
    2:49pm
    Absolutely! Seems the only way to do it .
    Anonymous
    17th Jan 2019
    12:39pm
    Except our pension system prevents it unless you happen to be wealthy enough not to need the OAP.
    Karl Marx
    15th Jan 2019
    1:09pm
    If your estate is worth millions then consult an specialist in estate planning & wills to set up family trusts. This makes it very very difficult to contest in court.
    If your estate is the average say under a million then keep the will simple & include all children equally to make it very difficult to contest.
    ALL wills can be contested by anyone not just the children (remember billionaire Richard Pratt's estate was challenged by an ex lover) & any contesting of the will, will eventually reduce the value of the estate.
    Bottom line is to make a will through a solicitor & don't die intestate.
    Cassius
    15th Jan 2019
    1:10pm
    Totally unfair situation, they have the right to challenge your will and you are not there to defend your actions
    sunnyOz
    15th Jan 2019
    1:26pm
    Just recently been through this..will specifically stated estranged child, one of 6, was to only get $2,000. Was challenged, ended up getting equal share, with costs awarded from estate. So other 5 got considerably less.
    musicveg
    17th Jan 2019
    2:33am
    And how much did the lawyers and courts get?
    Sundays
    15th Jan 2019
    3:15pm
    I agree Paddington.Even if they don’t contest they can threaten to until the other children give them something and if they do contest the only ones who do well are the lawyers
    HarrysOpinion
    15th Jan 2019
    8:48pm
    If the testator's children become estranged it's probably because the parent was abusive and acted out domestic violence. The testator's choice to leave their child/children out of the Will is proof and a further demonstration of the parent's abusive and vindictive nature. If the family grew up with the meaning of family love the distribution of the deceased estate would not be a topic for discussion.
    Karl Marx
    16th Jan 2019
    1:59am
    or possibly the estranged child or children became drug addicts or criminals. You don't know any of the circumstances surrounding the family so to assume it's probably domestic violence may be way off from the truth.
    HarrysOpinion
    16th Jan 2019
    10:11am
    You just don't get it 1984 do you?
    If there was parental love and positive mentoring throughout the child's upbringing, the child would not have become deprived to end up as a criminal or become a drug addict.
    Karl Marx
    16th Jan 2019
    12:03pm
    What a load of rubbish HS. To assume that ALL problems with children is the fault of the parent because the parent is violent just shows what an ass you are.
    As I said you know nothing of the circumstances of the family in question so your original comment is simply rubbish
    HarrysOpinion
    16th Jan 2019
    3:41pm
    It's not an assumption but a known fact! 1984 .
    ALL problems with children is the fault of the parent because the parent is neglectful, reckless, doesn't know how to show love , doesn't deal with understanding and fair reason, the parent is a bully and a violent person.
    You bring children into this world you are responsible for what they become!!
    They didn't ask to be born.
    Parents with your attitude are a load of rubbish! That's why kids turn to crime and drugs.
    Leaving a child out of the inheritance is a further demonstration of the parent's vilification of the child and violence against the child. .
    Karl Marx
    16th Jan 2019
    5:41pm
    What a load of utter rubbish, end of discussion
    HarrysOpinion
    16th Jan 2019
    9:15pm
    Can't accept the truth 1984? Do you find it so difficult to admit that you were at fault not your child? Did you find it easier to abandon your child then to cope to overcome the problems? So when did your child begin to be aggressive against you 1984? Was it after you violently slapped your child around few times, was it when you harshly abused the child verbally? or was it when your child began to ignore you and ran away from your violent temper? ...
    Circumstances 1984? What do you know about circumstances 1984? What do you know about a 6 year old child being bashed and concussed by his parent or the parent who threw their nine year old child into a pitch black underground dungeon in temper? These were the same parents who disinherited their adult children.
    End of conversation? The conversation, the nightmares never end 1984.
    Load of rubbish? Yes, you are!
    Anonymous
    17th Jan 2019
    12:38pm
    You are ill-informed, ignorant, arrogant in the extreme, unjustifiably self-righteous, and absolutely WRONG, HS.
    There are lots of people in the world who were loved and cared for and protected and turned out nasty and selfish. It happens. How do you explain one nasty, selfish person in a large family where all the others are kind, considerate and honest? The parents discriminated against them? Rubbish!
    I was recently involved in a very nasty and disgusting battle over wills where one child had cared for Mum diligently, spent money on her, etc. and the other had abused her and robbed her. Mum was a good person and a wonderful mother. Yes, it's possible the abusive child had some bad experience that twisted her. In fact, I think it's fairly certain that happened - but through on fault whatever of the mother. And the other child also went through some pretty heavy trauma, but she chose to show the world she was made of good stuff and could be strong, whereas the abusive child chose to take out her anger and hurt on anyone and everyone she came in contact with. And psychologists will tell you that when people hurt and seek revenge, they always lash out and the person they love most and who is least deserving.

    In the case I refer to, the mother disinherited her abusive child because the abusive child had already received 150% of her share of the inheritance, by theft, and the other child had supported Mum after she was deprived of necessities and had never received a cent. Of course the courts decided the abusive child was 'needy' (having been an irresponsible spendthrift, but also manipulating to hide her wealth) and rendered an unfair decision. And of course the lawyers ended up with 70% of the estate.

    Sorry, HS, but your self-righteous BS is just that - BS. You haven't got a clue.
    musicveg
    17th Jan 2019
    1:26pm
    As always Rainey the courts are the one's who are making money out of contested wills, it is disgusting, more people will be spending their money before they die because of this.
    HarrysOpinion
    17th Jan 2019
    2:35pm
    OnlyGenuine Rainey-

    "The final act of vilification and domestic violence is to disinherit your children."

    Unfortunately there are people like you and 1984 who are the BS and you are the kind that have no clue except how to act like nasty violent bastards.
    Anonymous
    17th Jan 2019
    6:23pm
    So you think people who steal from their parents and abuse them should be rewarded and the child who got NOTHING, but actually stretched their own finances to help Mum or Dad out and ensure all their needs were met should get sweet nothing?

    It's not me who is the nasty, violent bastard, HarrysOpinion. It's people like you who want evil rewarded and good punished.

    Inheritance has NOTHING WHATEVER TO DO WITH LOVE OR VIOLENCE. There are thousands of reasons why it may be right and proper to exclude someone from your will or to give one or another more. Anyone who associates that with love is VILE in the extreme. What you are saying is that money buys love, and fairness is irrelevant.

    In the instance I referred to, the abusive child actually stole ALL of the other child's inheritance from the father - AFTER benefiting all through childhood from the father's estate while the other child got NOTHING. The mother was simply being fair - rebalancing the scales as best she was able. She made a strong statement that it had nothing to do with affection or love, nor with punishing anyone. She left letters explaining her reasons in detail and stating that her love had never wavered and although some behaviour disappointed her, there was nothing to forgive. She only hoped that someday her child would stop hating the world and hurting others, because in the end those who wrong others hurt themselves worst of all. But she had one child who had taken everything she could get and one who had given all she could. And you say it would be wrong to repay the one who deprived herself and her own family to compensate for her sibling's theft? The thief should be rewarded?

    Thank goodness my children understand that my money is mine to do with what I please and to gift or bequeath as I please. I gave them the tools to stand on their own two feet and achieve their goals in life. I give them unconditional love. But I do not owe them anything and I am not obliged to - in fact it would be WRONG to - treat them equally.
    HarrysOpinion
    17th Jan 2019
    7:24pm
    “So you think people who steal from their parents and abuse them should be rewarded and the child who got NOTHING, but actually stretched their own finances to help Mum or Dad out and ensure all their needs were met should get sweet nothing?”

    -That’s not what I wrote OGR –

     “It's people like you who want evil rewarded and good punished.”

    -That’s not what I wrote OGR –

    “Inheritance has NOTHING WHATEVER TO DO WITH LOVE OR VIOLENCE”

    -Yes it does!-

    From 1 March 2009, the New South Wales Succession Amendment (Family Provision) Act 2008 commenced its operation and the purpose of this new  Actincludes repealing the Family Provision Act 1982 and amending the Succession Act 2006( the Act) to ensure that adequate provision is provided to the family members of a deceased ...
    Family Provision Act NSW Claims

    Big thanks to the legislators who do not think like only Genuine Rainey.
    Karl Marx
    17th Jan 2019
    9:21pm
    Agree with you 100% OGR. It's obvious that HS has not experienced the real world apart from his own experiences & tarred everyone with the same brush.
    I pity you HS, you are so narrow minded. Maybe you should talk to some family support groups & get more than 1 story.
    I new a family whose daughter became a gambling addict. No fault of the parents or her loving husband & son. She lied, cheated, stole from friends & family & when it all eventually surfaced she fled abandoning her husband & son to cope with the mess left behind & refused to have contact with her parents, sister, brother or husband & son. Refused to take calls or answer text , but sends the odd nasty text so they know she's still alive. No one knew where she was living. She was sent sent a text when her mother passed away but still refused to have any physical contact, she refused to attend her own mother's funeral.
    And yes she came from a very loving & caring family with no abuse or domestic violence at all.
    And to name call me & OGR nasty violent bastards because we pointed out that there are many many different circumstances to why children may be estranged from family just goes to show your own nasty uneducated temper.
    Anonymous
    18th Jan 2019
    7:29am
    I know what the NSW Family Law Act says, HarrysOpinion. It was written to ensure LAWYERS get most of the estate. It is patently WRONG in theory and even more wrong in application.
    I can point to case after case after case where the courts have totally failed both deceased and beneficiaries, put the executor through 2 years (or more) or hell, indulged disgusting evil thieves, cheats, fraudsters and liars. Even the lawyers admit the law is wrong. Ask any lawyer involved in estate planning! The only good thing they can find in the law is that it feeds them.
    Anonymous
    18th Jan 2019
    7:48am
    Actually, HarrysOpinion, the law in NSW DOES recognize the right of the deceased to disinherit a child where there is reasonable cause (abuse, theft, etc). Read the list of things courts are SUPPOSED to consider in a will dispute.

    However, the courts ignore the law unless the estate is large enough that a huge and very expensive Supreme Court battle can be fought in which witnesses and evidence are presented to both prove the reason for disinheritance and prove the deceased's wishes were correctly stated in the Will. The law isn't the problem except that it permits wrongful application. It's the way it's applied that's the issue.

    And most lawyers agree that the biggest problem is that the law no-win/no-pay offers, which attract people who have no moral or ethical claim but are greedy, evil liars. Once they make a claim, the courts hand them a loaded gun. The executor has to either concede with a settlement offer the evil creep accepts, or spend 2+ years of stress and work and a minimum of $70,000 defending (and that's only if the applicant ends up being awarded less than the executor offers. Otherwise, it's minimum $150,000.) Of course the estate has to pay regardless of the outcome, so there is no fair way to defend.

    I have written to the Attorney General several times and my recommendation was that no-win/no-pay be abolished so that only those with a strong claim feel confident to proceed - but of course in any (rare) genuine case costs can be awarded as is standard in all types of civil dispute. Secondly, I suggested that there should be provision for an application to be made to dismiss a claim if it can be shown to be dishonest in any way or unreasonable in the demands it makes. Currently, the law permits applicants to lie in their initial Affidavit and change their statements AFTER a settlement conference if the matter proceeds to court. That's totally LUDICROUS and patently unjust. It means the executor is forced to make offers based on untruths with no opportunity to challenge them. The law also protects claimants who lie about their assets in their initial Affidavit and lets them change it later - so the executor has no way to assess what a judge might decide based on the REAL assets.

    I also pointed out that although a settlement conference is required by law, the applicant gets to refuse to attend and just send their lawyer and barrister - and the lawyer and barrister can refuse to meet with the executor or beneficiaries and insist on ONLY meeting with the defendant's legal team. That is disgusting.

    Ultimately, neither the deceased nor the defendant has any rights despite the wording of the law granting them considerable rights.
    HarrysOpinion
    18th Jan 2019
    9:02am
    At the end of the day, you Only Genuine Rainey and 1984 do nothing but prove that it's people like you who advocate domestic violence to the very end.
    Anonymous
    19th Jan 2019
    12:28pm
    You are a very nasty and judgmental individual, HarrysOpinion, and one who has no idea what you are on about. I abhor domestic violence, and I'm confident 1984 does as well. It is NOT violent in any way to adjust your will in ways that are fair and appropriate, having consideration for all of the factors that are relevant in your individual circumstances.

    And as for your BS about parents being responsible for abusive of neglectful children, how do you explain the family who were close and loving until one son lost his wife at age 47 and was left with young children, and turned hideously bitter and angry at the world, taking it out on his mother because she wouldn't (couldn't) step in and replace his wife - although his parents did live in a very inadequate and uncomfortable granny flat for months to help the family get back on their feet and were always there to help out whenever they could - until, a year after the death, HE cut them off and refused to let them see their grandchildren ever again. A psychologist explained that this can happen because sub-consciously a widower becomes angry with his mother for outliving his wife. Mothers are supposed to die first, aren't they? Also mothers fix everything that is wrong in their son's life. Yet the mother didn't fix the very worst thing that could happen to her son. How could she fail him so badly? This is entirely subconscious and beyond control, but apparently - according to several psychologists - quite common.

    But then, HarrysOpinion, you would obviously know more about it than anyone else, because apparently YOU KNOW EVERYTHING. But you certainly have NO IDEA on this subject. Or perhaps you are one of those vile lawyers who milk the system to steal the estates of the deceased from the intended beneficiaries?

    16th Jan 2019
    8:58am
    only leads to lots of conflict and only winner is lawyers..you hear about it on occasion where the aggrieved person takes it to court and the estate has to pay the legals bills andthey end up with something.

    there are ways to leave money outside the will and has to be done prior to your demise.
    musicveg
    17th Jan 2019
    2:35am
    And the lawyers love a contested will, they make a lot of money. Most likely why the laws are not changing.
    musicveg
    17th Jan 2019
    2:43am
    One of my mum's friends kept saying "I do not want my estranged (adopted) daughter to have anything she has been cruel and unkind to me" and she arranged her will so that my mum could get most of it instead - she only had a grandchild from her late son and the daughter in law who also only visited when she needed money and kept fleecing her of it, taking her to the bank each time to withdraw large sums at a time. They of course contested the will and won most of it back. How sad that someone can not care about a parent (grandparent) for so long and then only care about the money. Is it right for a will to be contested? Only for the lawyers who make the money from it.
    ex PS
    17th Jan 2019
    11:46am
    We have to legislate to ensure that people have no entitlement to a dead persons estate. Spouses should be covered by joint ownership laws, but any one else should take their chances and be grateful for what they get.
    Our son has already told us that he will be very disappointing if learns we went without in order to leave him an inheritance. That alone assures him a little something when we go.
    Anonymous
    18th Jan 2019
    7:34am
    Couldn't agree more, ex PS. The way the courts dishonour the dead is a disgrace. Partners and dependent relatives or adopted/fostered dependents should be provided for properly. Beyond that, everyone should be able to do what they wish with their money.

    Tell me how the law determines that 50+ year-old woman who has lived independently for more than 20 years, has a lifetime entitlement to public housing, receives a disability pension, owns a $350,000 block of land and has $250,000 in the bank is deemed to 'need' half of the estate of her mother whose total wealth was a $280,000 home unit?
    It's utter BS. The law says abuse is grounds for disinheritance, but in small estates that provision is totally ignored because the cost of presenting evidence is too high, so all the courts goes on is comparative wealth. He/she who appears to have least gets the prize - or what's left of it after lawyers take a minimum of $150K between them.
    KIAH
    19th Jan 2019
    1:28pm
    .

    To David

    Of course it’s none of my business what you do regarding your Will, but you did make your situation public, so here is what I think. You brought this child into the world for better or worse. We are reading your side of the story, but what about the other side? You are the parent and surely you were responsible for some of the behaviours of your child.

    Who knows how much hurt this person may have gone through, why add to it? There is every chance when you die your children, including the estranged one may come together. Why drive an even bigger wedge between them? Certainly the child can challenge your Will, but if it were me, I would not like to put any of my children through more grief and anger over money.

    Just my thoughts.
    Arvo
    19th Jan 2019
    3:13pm
    Good thoughts Kiah! Ditto!
    greygeek
    20th Jan 2019
    7:44pm
    We had our Wills constructed through a Solicitor. 2 Children one will receive 70% and the other 30%. Why? For the whole of the eldest's childhood through to age 17, our lives revolved around his care, appointments, training, psychiatrists, etc., for his unspeakable actions and attitude. In 1987, he tried to kill his younger brother. I saved the younger one, only just! Eventually, we were told the truth of what was wrong! Type A Personality Disorder! It was nothing at all to do with our Parenting, our raising of him, it is a condition that one is born with, just the same as the colour of one's eyes! People with this condition either "settle" or "explode" at puberty! Absence of any good emotions, very intelligent, always seeking revenge for real/imagined slights, absence of remorse, pathological liars, aggressive towards others (this even occurred at School) as did sexually inappropriate behaviour. Need I go on? Despite everything we the family did for him, following all the instructions of the Experts, even the School/Teachers co-operating it was all to no avail. To this day he still seeks "revenge" on this motherf….r for "imagined" wrong doing. He wrote at the time of the attempted murder, that he would try again, and on the odd occasion we converse he reiterates that it is still his intention! Unless a person with this disorder recognises the condition, there is no pill/therapy/counselling anything which will assist! Of course, those with this condition never acknowledge they have a problem, it is everyone else! All of this in more detail, with copies of psych letters etc. is fully documented in our Wills and we apportioned 30% on legal advice, to avoid any likely successful appeal. So to all those detractors who lay the blame firmly at the feet of the Parents, I say "Open your mind" Not every Parent is a child abuser! Parents/siblings can be the abused! Says she who received over the time, 2 broken noses, numerous black eyes, cuts and ALL without cause on my part!
    musicveg
    20th Jan 2019
    7:59pm
    So sad Greygeek, I have read that bromine in bread (before 1992 when it was banned) can cause mental health issues, some people become sensitive, there are also many other chemicals that can cause it or lack of certain nutrients like iodine. But it is very hard to help an adult child when they do not seek help. But as far as your will, the courts will still allow him to contest it anyway, until this law is changed which they won't because they make a lot of money from people contesting wills.
    Anonymous
    21st Jan 2019
    1:23pm
    Sadly, musicveg is right. The will can still be contested. A greedy person can contest even if given the majority share. All they have to do is evidence claimed 'need', which really means appearing to have less than a beneficiary who was left more than the greedy person. The case I was involved in recently, the applicant asked for MORE than the total estate, because the estate included a 'notional' asset that the applicant had already taken. So effectively she wanted 100% of the estate PLUS the value of the asset she had already taken into her possession.
    Ted Wards
    20th Mar 2019
    11:01am
    As an estranged child I can tell you that child will not even know that your dead and will not care. They are estranged for a reason and its usually because that particular family member was very toxic and the estrangement happened by the child as a last resort to protect themselves (usually, but not always). There is a very definite reason the child had not responded to you reaching out and I bet its because of how you treated them in the past.