How best to prepare will to leave out an estranged child

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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 [email protected].

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

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