How best to prepare will to leave out an estranged child

Font Size:

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.

•••

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.

Join YourLifeChoices today
and get this free eBook!

Join
By joining YourLifeChoices you consent that you have read and agree to our Terms & Conditions and Privacy Policy

RELATED LINKS

Can I share an inheritance with my siblings?

Lawyer Rod Cunich explains the ramifications of Jeff's planned generosity.

How to deal with stepson’s query relating to late father’s will

Jane is the administrator of her husband's will and asks Rod Cunich for guidance.

Brian is planning ahead to limit issues after his death

Brian has Powers of Attorney and pre-paid funerals on his mind.

45 Comments

Total Comments: 45
  1. 0
    0

    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!

  2. 0
    0

    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.

  3. 0
    0

    Crazy laws, adult children should get nothing if that is your choice

  4. 0
    0

    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.

  5. 0
    0

    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.

  6. 0
    0

    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.

  7. 0
    0

    Totally unfair situation, they have the right to challenge your will and you are not there to defend your actions

  8. 0
    0

    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.

  9. 0
    0

    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

  10. 0
    0

    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.

    • 0
      0

      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.

    • 0
      0

      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.

    • 0
      0

      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

    • 0
      0

      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. .

    • 0
      0

      What a load of utter rubbish, end of discussion

    • 0
      0

      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!

    • 0
      0

      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.

    • 0
      0

      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.

    • 0
      0

      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.

    • 0
      0

      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.

    • 0
      0

      “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.

    • 0
      0

      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.

    • 0
      0

      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.

    • 0
      0

      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.

    • 0
      0

      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.

    • 0
      0

      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?

Load More Comments

FACEBOOK COMMENTS



SPONSORED LINKS

continue reading

Destinations

Max Williams experiences the magic of Lake Mungo

I gaze in wonder at the small bone fragments I am holding. Most likely they are part of a Murray...

Travel News

WA opens borders – but not to everyone

After hard lockdowns, travellers from New South Wales and Victoria have been granted quarantine free access to Western Australia. As...

COVID-19

Home quarantine off the table – for now, says Dan Andrews

Victoria will accept overseas travellers from 7 December. And while there was hope that returning travellers to Melbourne could do...

Christmas

Adelaide family returns home to find koala perched on Christmas tree i

An Adelaide Hills family has returned to their home after a short outing to find a koala perched on the...

Australia

Best Christmas markets 2020

It's no surprise that Christmas markets will be operating differently this year, and sadly many of the country's favourites won't...

Australia

Bushwalking for beginners

Bushwalking is one of life's simple pleasures, an environmentally-friendly means of enjoying natural and cultural wonders which exercises you, yet...

Travel Q&A

Travel SOS: All you need to know about flexible travel

Susan is starting to feel comfortable about booking travel, but wants the new rules explained. --- Q. SusanI thought it...

Self-drive holidays

Planning a road trip in a pandemic?

Thea van de Mortel, Griffith University As restrictions ease around the country and the prospect of travel beckons, many of...

LOADING MORE ARTICLE...