Is there a safe way to block estranged child from will?

Can Angie block an estranged daughter from her will without risking a drawn-out challenge? Estate planning lawyer Rod Cunich has the answer.

Is there a safe way to block estranged child from will?

Can Angie block an estranged daughter from her will without consigning her other children to a drawn-out challenge after her death? Estate planning lawyer Rod Cunich has the answer.

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Q. Angie
Is it possible to cut an estranged offspring from her parents’ wills? We have five children, including her. We would like to do this, or to at least not leave her much, as she will just squander it so that she feels important!

A. Rod
You can leave your daughter out of your will – it’s purely your choice who you leave your wealth to. If you do leave her out, you should consider preparing a formal statement setting out all relevant facts (in your own words) so they are available to any court that is asked to investigate the issues.

The legislation in each state makes specific provision for such a statement and expert legal advice is required to prepare such a statement appropriately.

That said, there is nothing you can do to prevent your daughter challenging your will if you leave her out or leave her only a small gift. All children have a statutory right to challenge a parent’s will. She has no right, however, to a particular share of your estate. Even though she has a right to challenge your will, she would need to satisfy a court that she is entitled to a share when all the competing interests are considered. 

Your daughter’s chances of success depend on a court considering more than 20 issues when determining whether you should have made provision for her and, if so, how much.

A long estrangement with a daughter is an important factor a court will take into consideration, but it is not decisive.

I recommend that you seek the advice of a specialist estate planning lawyer to assist (you can find accredited specialists c/- your state law society or law institute). For example (this is not an exhaustive list and may not be possible in your circumstances), you may be able to be financially assisted.

Rod Cunich is a lawyer and author with more than 30 years’ experience who specialises in estate planning. If you have a question for Rod, simply email it to newsletters@yourlifechoices.com.au. His book, Understanding Wills and Estate Planning, has recently been updated and is available from all good bookshops.

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    COMMENTS

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    Retiring Well
    15th Jan 2020
    11:35am
    Leave her out and she will get the lot.
    Paddington
    15th Jan 2020
    4:28pm
    Yep. Just share it equally less strife and upset for everyone.
    Arvo
    15th Jan 2020
    11:36am
    Under Section 3 of the Succession Act 2006 (NSW Consolidated Acts) (the Act), eligible persons are those persons who can make an application for Family Provision Orders to the Court, which is in respect of the estate or notional estate of a deceased person to provide maintenance, education or advancement in their life.
    Find a specialist Barrister first who will refer you to a solicitor to represent you.
    Mediation , with the Barrister representing you, is the first step and is mandatory before it can go to court
    As for the concern that the daughter will blow her share of the Estate. One judge stated this in a court hearing..." it is of no concern that the eligible plaintiff will spend the money on wine, women or song, what is of concern is whether the plaintiff has been adequately provided for under the Act....".
    Tood
    15th Jan 2020
    5:18pm
    to provide maintenance, education or advancement in their life, for who? Unless its for an under aged child or parent of that child, the rest can whistle dixie! Adults are responsible for making their own way in life not waiting around like a vulture for the unearned pickings.
    Arvo
    15th Jan 2020
    10:30pm
    Tood- Your belief has no relevance in a court of law , it's what is agreed in mediation
    or, if the case goes to court, it's what the judge decides is the appropriate outcome.
    older&wiser
    15th Jan 2020
    11:48am
    Just in this mornings newspaper was a case of an estranged son contesting a fairly good sized will, and it was thrown out. So can be done.
    Arvo
    15th Jan 2020
    11:56am
    which morning paper ?
    Ted Wards
    15th Jan 2020
    12:23pm
    Im an estranged daughter and my dad passed away last year. There are always two sides to the story and I wonder if Angie has considered what it must be like for her daughter. It takes two for estrangement to occur. In my case it was protecting myself from an abusive father and siblings. We reconnected before he passed away in June last year and he had not one nice word to say to me when we reconnected. In fact, it only served to remind me why I walked away in the first place.
    My recommendation is to consider those you leave behind, and forget about whatever the issue is. The only ones you hurt by leaving nothing behind are your other children who will have to do the fighting. Leave her something, even if its $500, a ring, whatever. Whatever your reasons are for this estrangement it is finished once you pass away. Don't let it go down through generations, and it does, think about your own family fights with your former generations.
    I did not contest the will at all because it was not worth the stress and the money it would of taken and only the lawyers win.
    My life is better now because I've had to make it that way.
    Just remember when you all respond, you do not know the details and no one is ever a victim in these cirumstances. Estrangement happens because of both sides. Its never just the parents or the child. Together you made this occur for whatever reasons. Angie to me sounds bitter and wanting to continue to punish and hurt. Why? Your daughter did not choose you as a parent, nor is she responsible for how you parented her. She is responsible for the decisions she has made as an adult and we are not aware of the circumstances of why she did what she did.
    Believe me, you don't want to be remembered as a bitter parent who punished a child right up to your death.
    KSS
    15th Jan 2020
    1:03pm
    Just as you demand people consider the 'other side of the story' and describe Angie as a 'bitter' and unforgiving parent, so you can be asked to see the other side and also be described as a 'bitter' and resentful entitled 'child'!

    I suggest you also do not know both sides of the story. You are colouring the scenario with the superimposition of your personal experience which really has no relevance to this question. The fact is families do break down and for a variety of reasons and rarely is one party wholly innocent in that breakdown.

    It is not for us to sit in judgement of others. The fact is, leaving a nominal amount to an estranged child(instead of leaving then out completely) is no guarantee that child would not still contest the will. And even leaving the estate to be divided equally among all the children is also no guarantee that the will would not be contested either by the estranged child who may feel they are 'owed' more (to make up for past hurt), or by the others who may feel that they have 'earned' more (as a result of being present and looking after the deceased to the end). Death and the subsequent scrap over the spoils brings out both the best and worst in people.

    Ultimately, the assets belong to the dead person and should be distributed as per their will. Unfortunately this is not the way it is under law which means there is little certainty that your last wishes will be carried out regardless of what is written down, evidenced or justified.
    ozirules
    15th Jan 2020
    1:17pm
    To say that estrangement happens because of both sides and never just one is factually incorrect. I personally know of more than one case where this is just not so. That aside, I believe that 'Angie' should be able to bequeath her assets to whomsoever she wishes and it's a shame that there is not a simple, indisputable mechanism to guarantee her wishes are carried out.
    Tood
    15th Jan 2020
    5:05pm
    Get over it Ted. You left for a good reason so enough of the sob story, once you are estranged move on! If you have rotten parents, siblings etc get as far away from them as possible and don't even entertain the idea of going back. Blood is not always thicker than water just because you are related to someone doesn't mean you let them ruin your life by hanging in, don't expect anything from them ever and form new friends and relationships and leave the flogs behind for good. As you found the reconnection was a waste of time.
    Gammer
    15th Jan 2020
    2:08pm
    My late husband was estranged from his two children, left them a token amount in his will because of this. End result - 8 years before the estate was finalised with everyone having a large solicitor’s bill to pay and less inheritance as a result!!
    Tood
    15th Jan 2020
    5:06pm
    Good serves them right, make trouble you don't deserve any more if they even deserved anything at all!.
    SuziJ
    15th Jan 2020
    4:19pm
    My son hasn't had much contact with me for the past 16 years, even Monday, I sent him a birthday text, and it wasn't replied to. Have done this for the past 16 birthdays, but still no response or reply. I only know he's still alive through his father, with whom I have some contact. I don't get birthday messages from him at all.

    I still have him in my will with a minor percentage (he's an only child), and it's tied up so well that he has to wait until his father dies before he can get it. I know some may think that this action is stingy, but it's my estate and I have received good legal advice - just so long as you leave something to him, he can't contest it.
    Tood
    15th Jan 2020
    5:10pm
    so when his father dies if he has substantial holdings and the son is not happy with the minor percentage, why do you think he wont come after more.
    KSS
    15th Jan 2020
    6:10pm
    SuziJ I think you will be turning in your grave if you truly think that by leaving a small bequest would prevent your son contesting your will if he so chooses. It won't! That's not to say he will win, just that he has the right to contest it if he thinks he has been hard done by.

    And what if the Father dies before you? No waiting for the spoils then!
    Paddington
    15th Jan 2020
    4:26pm
    Too risky! Include the absent child to save grief for the others. Better to have the estate dealt with quickly and concluded with no arguments or eroding a small estate to nothing.
    Tood
    15th Jan 2020
    5:14pm
    Outrageous, the law needs to be changed. Its YOURS and you should be able to leave whatever to whomever and if that doesn't include family or relations so be it. Otherwise a waste of the court's time unless there is the welfare of an under aged child to be considered.
    OZ
    15th Jan 2020
    10:40pm
    Yes Todd I totally agree with you.