16th Dec 2018
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How best to favour one child in will
Author: Rod Cunich
Will uneven legacy cause issues?

Eddy has two adult children. One has done well in life and is comfortable while the other is struggling. He asks estate planning lawyer Rod Cunich about the possible ramifications if he leaves more in his will to the ‘struggler’.

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Q. Eddy*
I have two adult children. One has had a lifetime where everything has fallen into place and the other has battled to keep her head above water all her life. My question is, can I legally leave a greater portion of my assets to the one who has struggled and is in need – and, if so, up to what division percentage could I allocate in the will without (maybe) a challenge being made to the will after I pass?

A. You can leave your estate to whoever you wish. That said, if you do favour one over the other, the less favoured may challenge the will on the basis that you made inadequate provision for them. There is no ‘magic’ percentage or recipe to avoid a challenge. The best thing you can do is to chat to the one who has done well and tell them what you plan to do and see what the reaction is. If that child can live with your decision, it is unlikely there will be any trouble.

*Not his real name

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.

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.

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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.





    COMMENTS

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    margie
    18th Dec 2018
    10:07am
    I will never understand why a parent would 'punish' a child who has done well in life, you would think they would be proud. I'm sure the one who hasn't done as well has had help from the parents along the way. The only fair thing is have your will equally divided between your children unless there is some other reason and then maybe give as much as possible to the poorer one while you are still alive.
    maelcolium
    18th Dec 2018
    11:03am
    Agreed Margie. I wonder sometimes when parents think this way that perhaps through a sense of guilt they are trying to redress some perceived shortfall of their impact on the less well off child. Purposely favouring one child over others at any stage of life is reprehensible, but even more so when reaching out from the grave. Having said that, different children need parental support in varying ways, so I doubt there is any hard and fast rule other than attempting to be fair to all.
    In a case I experienced, a will decreed that the children would receive the benefit of an estate exclusive of the live in partner of 20 years who was provided for in a personal superannuation set up by the deceased. It's floundering it's way towards court as the estranged wife of the deceased also wants a chunk of the estate, which may mean the will is deemed unfair and the children receive very little.
    I'm labouring the point, but humans are curious creatures and families even more so when sharing family assets. Even family trusts are often difficult as has been seen in Gina Reinhardt's case. The old adage to keep it simple is very true' otherwise the estate value can be diminished by the fees of legal parasites.
    OlderandWiser
    18th Dec 2018
    1:40pm
    But the courts favour whoever has less, regardless of reasons or fairness.

    A case I was involved in the deceased mother was deemed to be unfair but what she did was actually very fair. Two children with two different fathers. The younger got a big inheritance from her father. The elder not only got nothing, but actually was left a trust fund that was used up supporting the younger child when her father failed his parental responsibilities. Mother tried to balance the scales but was overruled because the one who had already received a large inheritance had wasted her life and claimed 'need'. In the end, there was very little left for either after legal fees. What irked me was that the lawyers didn't care a jot about fairness or the deceased's wishes or reasons. And the court process was disgusting. It allowed the claimant to hold a gun at the executor's head. There was no provision for fair defence. The claimant had it all her own way. Didn't even have to participate in a ''compulsory'' settlement conference.
    Noodles
    18th Dec 2018
    11:40am
    Easy answer on this. The father to take out an Insurance Bond naming the child as beneficiay. On the death of the father the money is paid directly to the child.
    If anyone is in doubt that what I have said is correct go to the Money Smart we site and look up Insurance bonds. It is all laid out there.

    It is treated separately to the Will and has nothing to do with it...is a separate issue. My father did this for me and it was paid directly to me within weeks of his death
    Rae
    18th Dec 2018
    12:13pm
    Thank you for this info Noodles.
    OlderandWiser
    18th Dec 2018
    1:41pm
    That works if the purchasing the bond doesn't compromise the parent's pension entitlements. Poor people don't have the luxury of using these methods.
    Mum
    18th Dec 2018
    2:18pm
    Don't do it, Eddy! Split everything down the middle.
    KB
    18th Dec 2018
    2:40pm
    Wills should be divided equally as this prevents conflict in the future with the siblings.
    Blossom
    18th Dec 2018
    8:21pm
    It is very expensive to contest a will. Special solicitors handle them.
    Sometimes one child will have a lot of things bought and given to them (e.g. double garage, blinds and curtains, airconditoning, house insulation, caravan etc.) the cost of these items can be very expensive. The other child may not have been given anything. A letter of explanation should always be given to the solicitor and filed with the will. Even the receipts if they are still available. I got more than my sibling did but I paid the funeral expenses and other accounts out of my share. It was no use claiming them as in the end they came out of my funds anyway.
    Eddy
    19th Dec 2018
    2:04pm
    Thanks for 'not his real name', that "Eddy" had me really worried for a moment.
    My father left all to our youngest (and in my opinion most favoured) sibling. Not being privy to his estate I do not know how much or how little he left. Nevertheless neither myself or any of of my other six siblings ever entertained the idea of contesting his will, it would have been too disrespectful to his memory. For myself, my will stipulates equal share to all my children without concern for their individual circumstances.
    Florgan
    19th Dec 2018
    2:32pm
    Bad move
    50/50
    Unless their assholes


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