Why daughter’s challenge to will is inevitable

Jacob* wants to block an estranged daughter from his will while providing for a disabled son and his brother. Rod Cunich explains the issues.

Why daughter’s challenge to will is inevitable

Jacob* wants to block an estranged daughter from his will while providing for a disabled son and his brother. He asks estate planning lawyer Rod Cunich if that is possible.

•••

Q. Jacob
My wife and I have three children – two boys and one girl. The girl left home at 16 and we have had no contact with her for the past 25 years – except for a brief period 15 years ago when she was hospitalised and borrowed money from us without repayment and again at her grandmother’s funeral. We wish to ensure she has no claim on our will. Our eldest son is mentally disabled and lives with us. He will need our home to continue any stable existence, with his brother as carer and joint owner. How can we ensure this happens?

A. There is nothing you can do to prevent your daughter challenging your will. All children have a statutory right to do so. 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 relating to whether adequate provision has been made.

A long estrangement with a daughter (at her instigation) and the health and welfare needs of your son are two important factors a court will take into consideration, but neither is decisive.  At the very least, you should consider preparing a statement (in your own words) setting out all relevant facts, 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.

Notwithstanding my earlier comments, there are numerous strategies to consider that may assist you in achieving your wishes, but you need the advice of a specialist estate planning lawyer. You can find accredited specialists through your state law society or law institute.

You may be able to financially assist your son ‘outside’ your will through the use of superannuation, joint asset ownership or the use of trusts established while you are alive. Some or all of these may be beyond challenge by your daughter.

* Jacob is not his real name.

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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    Disclaimer: All content on YourLifeChoices website is of a general nature and has been prepared without taking into account your objectives, financial situation or needs. It has been prepared with due care but no guarantees are provided for the ongoing accuracy or relevance. Before making a decision based on this information, you should consider its appropriateness in regard to your own circumstances. You should seek professional advice from a financial planner, lawyer or tax agent in relation to any aspects that affect your financial and legal circumstances.





    COMMENTS

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    m52
    4th Dec 2019
    11:21am
    There are two sides to every story. As a sibling she would be entitled to a third of the estate. Why did she leave home at 16?
    Tood
    4th Dec 2019
    1:21pm
    Who cares how many sides there are, this woman has been out of their lives 25 years, should have made her own way by now, borrowed money, didn't repay it. What ever the issue was she's had plenty of time to get over it, and a few dollars doesn't make it go away and if it does it demonstrates how shallow she is. I hope this man finds a way outside of the Will to make sure is disabled son and carer are looked after .
    Rosret
    4th Dec 2019
    1:31pm
    Agreed m52. What horrible parents to deny their child no matter what. I really dislike articles like this - unloved in life and reminded of their lack of care even after death.
    Poor screwed up daughter.
    ozirules
    4th Dec 2019
    5:28pm
    Rosret what dont you get about some one having the right to decide where to direct there assets after death. Who are we to disagree. We cant stop anyone spending their money anyhow they like while they are alive, as should be the case, so why interfere with their last wishes. I'm sure you would baulk at a stranger interfering with your decisions and I would support your right to do so. This subject comes up regularly on this site with a slight twitch here and there to make it seem a fresh topic. It always draws the same response. Great support for both sides of the argument with no agreement possible between the two opposing philosophies. Methinks it's just a ploy to promote the services of estate planners.
    Fliss
    4th Dec 2019
    9:08pm
    Ozirules, could not agree more. It really p1sses me that some one's will can be challenged. If a person wants to leave their assets to a child, a neighbour, a charity, whatever, the choice is theirs & should not be challenged. They have their reasons & their choices should be upheld.
    Cassius
    4th Dec 2019
    11:24am
    This is absolute BS. The laws needs changing
    You should be able to do with your assets as you will save for allowing for dependant partner and or offspring
    Rosret
    4th Dec 2019
    1:40pm
    There always need to be an avenue to challenge a Will especially if they change the Will by being influenced by others, or have a mental illness, or are just plain cruel.

    I only wish second partners could be excluded from a Will no matter how long the marriage when the new partner is already self sufficient and have no children in common.
    Ted Wards
    4th Dec 2019
    11:33am
    As a daughter who estranged herself because of the emotional and physical abuse suffered for over 30 years, I can guarantee you there is more to this story. No one is an innocent as they seem. No matter what, she is your daughter, and had no say in her parents or their parenting style. Nominate an amount for her and remember you are still her father and there was a reason it occurred. It doesn't have to be a huge amount and she will be living with the reason for the rest of her life. I reconnected with my family when my dad died in June this year and all the old stories came tumbling out and i was reminded from the abuse heaped on me as soon as I walked into the room why I felt for self protection and to heal and move on, that the only way forward for me was to be by myself.
    Rosret
    4th Dec 2019
    1:43pm
    (((Big Hug))) There are some horrible people in this world. Thank heavens you are a survivor!
    m52
    4th Dec 2019
    4:29pm
    Cudos to you for staying strong
    Jacka
    4th Dec 2019
    12:32pm
    M52 idiot. Cassius is completely right. Your final wishes being dissolved by a so called Judge of the Court, who dresses as a member of the gay Mardi gras, and disperses your finances, after death, as he sees fit, is an absolute disgrace. A last will and testament should be totally final, dispersed as you wish, whether it suits others or not. Whether a sibling or a child is estranged or not should have absolutely no bearing on where your legacy goes. It should be dispersed as specified in your will and not be basterfied by a judge or anyone else. If you pass away intestate, the vultures can come in and pick at the bones. But a last will and testament should be totally binding and beyond reproach. In this respect the law is a total croc and definitely needs to be changed. Jacka.
    Tood
    4th Dec 2019
    1:13pm
    Totally agree, no adult should even have the right the claim and the Will should be final. There should be no obligation to leave relatives anything, once adult,everyone has to make their own way in life, if you are lucky enough to inherit something from family or friends, good, but it is not a right to demand something just because you are related.
    m52
    4th Dec 2019
    4:32pm
    Jacka = Homophobic and nasty
    ozirules
    4th Dec 2019
    5:41pm
    m52, Jacka sounds nasty because he's just pissed off with the attitude of those who would deny him the right to disperse his worldly goods as he sees fit. I'm with him. I care not one jot for the argument that some other person has the right to decide against my final wishes. Be altruistic with your own assets but butt out of mine. Yes you can call me nasty, mean, a bad parent whatever , I dont give a rodents rear end.
    Fiona
    4th Dec 2019
    2:38pm
    When my son in law's grandmother died she and her husband had lived with his parents till he died and she stayed till she died.
    Her will was left to his mother and another sister who lived in Qld but who often had her up for holidays.
    The other sister had had no contact for about 26 years and the grandmother wrote in the will that she didn't want to leave anything to heron the day of the funeral this sister arrived with her family at the ceremony and immediately after asked where the will was.
    When she found out she was left out she was going to take them to court and as even mediation was going to cost $100000 even though she didn't leave much, the sisters decided to give her an even share.
    Even then she wanted to know if her mother had paid for the part of the house she had lived in(she hadn't).
    I don't think they have had any contact since she got the money.
    Really I don't think people who give no help or care should be entitled to equal shares as a right.
    Fiona
    4th Dec 2019
    2:38pm
    When my son in law's grandmother died she and her husband had lived with his parents till he died and she stayed till she died.
    Her will was left to his mother and another sister who lived in Qld but who often had her up for holidays.
    The other sister had had no contact for about 26 years and the grandmother wrote in the will that she didn't want to leave anything to heron the day of the funeral this sister arrived with her family at the ceremony and immediately after asked where the will was.
    When she found out she was left out she was going to take them to court and as even mediation was going to cost $100000 even though she didn't leave much, the sisters decided to give her an even share.
    Even then she wanted to know if her mother had paid for the part of the house she had lived in(she hadn't).
    I don't think they have had any contact since she got the money.
    Really I don't think people who give no help or care should be entitled to equal shares as a right.
    Jacka
    4th Dec 2019
    2:56pm
    Totally correct these Vermin come out of their holes to gouge whatever financial benefits they can out of the estates of the deceased who wanted nothing to do with them and they had nothing to do with the deceased. it's an absolute disgrace that the law the judge's allow anyone to challenging a will. Seemingly right or wrong the deceased wishes should be respected and abided by. Definitely no judge should have the right to change the last request of a person. Intestate, no will the estates fair game unfortunately for some. Common sense should prevail, get rid of judges get rid of the Westminster system and have mandatory law one law applies to everybody not whoever has the most money. Regards Jacka.
    Arvo
    4th Dec 2019
    3:40pm
    If you don't want to share your estate equally with all the children you bring into this world, because one or two or all didn't turn out the way you wanted them to then DON'T BRING ANY CHILDREN INTO THIS WORLD in the first place, because not many children will become molded to the way you want!!!

    Rather than being mean and nasty in your last will testament, it would be highly noble of you to be remembered as a equally fair and a loving testator even to the ones who abandoned you, for whatever right or wrong reason. Only then you'd have the right to RIP and a ticket entry into the kingdom of heaven.
    m52
    4th Dec 2019
    4:30pm
    Get over yourself Jacka. Stop insulting yourself via a mirror. Self entitled fool.
    m52
    4th Dec 2019
    4:26pm
    Tood, you must be a great parent. How shallow is the parents in question?
    older&wiser
    4th Dec 2019
    5:53pm
    Daughter could have been a thief, a drug addict, and homeless. Under the current system, if she was left out of the will she would probably get more. Been through this with closest friend. Siblings who had worked their butt off and cared for elderly parents got less than absent junkie sibling because she 'needed it more'. Bloody disgrace.
    Rosret
    4th Dec 2019
    6:34pm
    She could be all those things in which case she is truly in need of help even if it comes with conditions. ie rehab.
    leek
    4th Dec 2019
    6:51pm
    I have already bought a flat for No 2 daughter with 2 Inheritances I received. So with the help
    of a lawyer, I have made provision for No 1 daughter, the same $$ I had spent on No 2 daughter, after No 1 daughter gets the make up $$, then the rest of the estate will be split up over the both of them. I only have 2 children, would have been a problem if I had more.
    Incognito
    5th Dec 2019
    3:17am
    Lawyers will drag it out in court and take what they can. Better to put the house in the disabled sons name so he has the security of the home. Everything else should be split.
    My mums friend had this issue, never put her estranged daughter in the will but she still got a lot of it anyway.
    The Bronze Anzac
    5th Dec 2019
    9:58am
    If the elderly couple gets a good estate planner & a good lawyer, or both, they should be able to sell their home to their 2 sons legally for a very cheap price. They could privately give the cash money for the sale to the 2 sons prior to the sale. The elderly couple could still live in the property, along with the 2 sons, pay all the normal expenses, & when they die all the assets other than the property, could be divided equally to all 3 children.


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