Can Susie block an estranged child from contesting wills?

Lawyer Rod Cunich explains what a will codicil will achieve.

Does Susie need to lodge her will with a solicitor? And can she ensure an estranged child cannot contest the will? She asks estate planning lawyer Rod Cunich for guidance.


Q. Susie*

I have drafted my own and my husband’s wills and have had each witnessed and signed by two witnesses. I have the originals of the will at home in a filing cabinet and both sons have received email copies. In both our wills, all assets have been left to the surviving partner. My first question is, do I have to lodge these wills with a solicitor?

I also have a child who was adopted at birth and with whom I have not had contact with over the past 20 years. I have put a codicil in my will acknowledging that he, and any of his offspring, are not beneficiaries of my will and that this has been done intentionally. Is this indisputable?

A. There is no need to lodge the wills with a solicitor. You should ensure, however, that the executor knows where the originals can be located and that they are stored in a safe and secure location.

As for your adopted child, the legislation in each state and territory permits certain categories of persons to challenge a will if they believe that inadequate provision has been made for them in the will.

The legislation sets out extensive criteria that a court must consider when hearing a challenge. If a court is satisfied that the will failed to make adequate provision, orders can be made varying the will so that the claimant is adequately provided for. You can’t, therefore, negate an adopted child’s rights in this regard by expressly excluding them or otherwise.

* Not her 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 


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    23rd Jan 2019
    I am very interested in the comments by the solicitor in this instance regarding an estranged child. I am in the same position as the writer. I have been led to understand that if you make some provision and give your reasons for doing so, then there is little chance of them achieving success if challenged? Also, if as this writer has done and leaves her share of the estate to her partner, as I have done, my understanding is that the children cannot contest the will at that point? Could you please clarify these two points.
    23rd Jan 2019
    Have been through this recently. Note I am not a solicitor. If your will leaves to your partner who is Alice, no the will cannot be contested at that stage. I have bought - and paid for - a great deal of legal advice about your other topic. I am a single parent and my only child chose a path of total destruction of my life. Ruined my relationship, my job, my home, my hobby, my bank balance. I moved interstate and literally had to start again. My will states she is not to inherit anything and why, but all legal advice to date is that she can still contest my will. So she takes everything from me when I am alive, and then when I'm dead. Really angers me.
    23rd Jan 2019
    Yes, an adopted child can contest the will - and leaving them anything won't help. I was recently involved in a case where an estranged child, who had abused and defrauded the deceased, was left a substantial amount, but filed a claim for more than the total value of the remaining estate. Didn't win, but that is irrelevant. Once the claim is filed, the executor and named beneficiaries have lost. There is NO PROVISION in the law to have a wrongful claim dismissed. The claimant is handed a loaded gun to hold at the executor's head and demand an offer of settlement that pleases. The executor has the choice of paying 'piss off money' (pardon the language, but that's what it is!) to satisfy the greedy claimant, or spending two+ years and at least $100,000 (possibly way more) defending the will. It's a no win situation for all but the greedy claimant, who gets to challenge the will at no risk with a no-win/no-pay agreement with their lawyer. And unless the estate is very large, the cost of producing evidence in the Supreme Court is way too high so any decision will be based on which of the beneficiaries and claimant have the most money. He who wasted, gambled, drank, was irresponsible and abused Mum gets the booty, and he who spend his own reserves and energy caring for Mum in her dotage, but has worked hard to own a home and have a few dollars in the bank, is deprived. Stinking system! Disgustingly unfair, wrong, unethical, immoral - and clearly designed solely to load the lawyer's pockets!
    The wolf
    23rd Jan 2019
    What is the legality of a will made overseas from Expat, regarding assets and bank account , the will including foreign spouse..In Oz a will is legal, I think, if two members sign as witnesses. Do we have to go to a Consular office to have a will registered, or can we like in Oz ask two Oz citizen to witness the will. Thanks
    23rd Jan 2019
    Depends where the assets are held. The law of the state in which the assets are held applies.
    The wolf
    23rd Jan 2019
    What is the legality of a will made overseas from Expat, regarding assets and bank account , the will including foreign spouse..In Oz a will is legal, I think, if two members sign as witnesses. Do we have to go to a Consular office to have a will registered, or can we like in Oz ask two Oz citizen to witness the will. Thanks
    23rd Jan 2019
    The sad and stupid part of all this, is that in reality you cannot do what you want with your assets in some circumstances.
    24th Jan 2019
    I'll go further Herbie and say it's outrageous that a persons plans to dispose of their assets after death can be overturned. OGR's comments are spot on. We've had this topic many times here before and whilst a lot of people agree with us there are some on this forum who think it's ok to change the intent of a will because they claim some moral justification. It's never ok imo. By what right should anybody be allowed to change, challenge or dispute how I dispose of my hard earned. Cant see the situation changing as our law makers ranks have too many lawyers. I would appreciate any ideas as to how we can circumvent the system. Do we put our assets off shore or can we arrange joint ownership with our chosen recipients so that upon death they simply become sole owners of the estate ?
    23rd Jan 2019
    Make sure you cash up everything you have well before you pass and give it to whomever you want.
    23rd Jan 2019
    That's a silly comment Palcey58. If you are cashed up and the money sits in a bank, or under your mattress or in shares, it's all part of accessible estate.You probably mean to spend everything or give it away as gifts to whomever you want, well before your death.
    23rd Jan 2019
    "Give it away before death' is good advice, but if you rely on a pension and don't know when you will die, that can be impossible.
    Karl Marx
    23rd Jan 2019
    Great advice, told her nothing
    23rd Jan 2019
    This question has been asked very recently and the same answers given.

    Ultimately it is up to the court to decide the distribution of your assets if your will is contested. There is a conga line of people who can contest the will and an 'estranged' child is one of them (adopted or not). Specifying a less amount than another child or even specifying no bequest at all can both be contested. Then it is up to the court to decide. You have no control.

    All you have to decide is the likelihood of the child (or anyone else for that matter) actually contesting the will especially if the chances of them discovering your demise are low!
    23rd Jan 2019
    KSS-Where possible, Will disputes are resolved through a settlement agreement or mediation. This prevents the matter going to Court and therefore reduces legal costs, brings earlier resolution and preserves family relationships.
    In order to ascertain what method is best for the claimant contact a good reputable barrister who specialises in this field. The barrister will refer you to one of his recommended solicitors to act on your behalf. There will be upfront costs of, say $2,000 to cover the process. The final cost will depend on the agreement whether the cost is to be paid out the estate or out of your agreed portion. Be prepared for the latter. Do not trust the "no win, no fee" because you are still liable for the process cost. Depending on the time the barrister has to spend on your case their fee may be as little as $7,000 and the solicitor's fee around $17,000 at best. If you go to court then the cost will be, "how high is the sky"?
    23rd Jan 2019
    Yes Arvo but ultimately they end in court (when mediation fails) and as I said the court will decide.
    23rd Jan 2019
    Rubbish, Arvo. The settlement conference cost is typically $25,000 - $30,000 per party, due to the work lawyers do to ostensibly prepare for it, and the entire cost comes out of the estate - therefore paid by the named beneficiaries, regardless of the honesty and merit or otherwise of the claim.

    And the conference is a total farce. The claimant gets to ask for what they want and threaten to proceed to court and run up further bills in the tens to hundreds of thousands if they don't get it. There is no defence possible. Goodness, sometimes the defendant isn't even allowed to participate. The lawyers play a horse-trading game! And the longer it takes to reach any agreement, the higher the cost - but NONE of it is paid by the greedy claimant, so it's to their benefit to be greedy and keep rejecting offers.

    There are alternate resolution processes available at low cost, but greedy claimants will NEVER consent to use those and there is no compulsion whatever and no penalty on them for refusing. They use the legal costs as a loaded gun to extort, and the courts don't just let them - they encourage them.
    Karl Marx
    23rd Jan 2019
    This post is very similar to one last week. YLC must be getting short on ideas
    Barbara Mathieson
    23rd Jan 2019
    Read about this problem last week!
    4th Feb 2019
    Something that has occurred in my family more than once is that, after one partner has died and the estate is left to the surviving partner, that partner has remarried and subsequently died, and everything has gone the the new partner and their children when they died. How do we ensure that our estate ends up with our children and grandchildren by birth?
    14th Aug 2019
    Hi Liani, my dad remarried (at 74) after my mothers death to what turned out to be a gold digger, - had the same idea, - get all the money, despite the will going three ways on the Property, and she getting all the money, shares, car, war pension, furniture, etc. - not enough for her.. so similiar to you.
    In NSW the law has changed so that the maximum debt the estate has to pay to the contestant is $80,000. - so that clipped her wings a bit, that legislation should be in every state IMHO.
    Of course every case is different, but I noticed that the things the Supreme Justice took into account.
    Wealth from the gold digger's previous marriage.
    That my brother and I had worked virtually every weekend and most holidays in our father's farm, - when we were kids,
    And that we had neither very much money, - quite frankly, upon my father's promise of his will, i spent a youth of much idealistic endeavour, being involved and sometimes a pioneer in Community health, Co-operatives, - worker co-operatives, co-operative farms, Solar energy etc, Biodynamics etc etc, and still am, - my whole life has been given to the community of Australia, - without stint, often struggling to pay bills, etc.
    That played no ball to the magistrate, he only looked at the fact that I had no property, but that the stepmother had huge.
    I guess that he thought, 'who would the father want, - to support' - his boys, or support the rich stepmother, of course any parent would want to support their children if their children had no money, Justices of the Family Court are not Neo-Liberals, to take from the poor and give to the rich, they try to do the best for the kids.
    The stepmothers' argument was that she wanted to spend the rest of her days in her new husband's house, surrounded by the community in which we had grown up and in which my father was respected, and my mother much beloved, as she was somewhat of a Saint.
    So of course she needed title to the property, even though the local community hated her, - which we could not bring to court, but these senior justices can be very canny, he said fine, - you can live their till you die, then the whole property goes to the Boys.
    Virtually as soon as the ink was dry, the step mother contacted us two
    'boys', saying that she felt our father's will should be honoured, so we should sell the property and get one third each, - which is what happened, although some figures ended up dodgy, and my brother and I received $330,000. from a property valued at 1.5 million.
    At least we could buy a small house in our old age and such, and I learn't that my brother and my daughter, who both warned me the stepmother was a gold digger, were right.
    Whatever, I honoured my father, as do most children.
    I did notice, though, that my stepmother becoming the Executor, - the which I was before, gave her extra-ordinary leverage in the situation, (which she no doubt had legal advice to pressurize my dad so to do) probably vastly increasing her chances and probably why we received $100,000. each or so less at the end of all that.

    So, Make a Will, give evidence in it to help your kids fight a contestant, and be careful who you choose for your Executor, is my Summary.

    Tags: money, will, rod cunich,

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