When it comes to creating an estate plan, a Will maker may wish, and have a valid reason, to disinherit one of their children, or to give a child a smaller portion of their overall estate.
Anyone expressing a wish such as this must be reminded of their legal obligations.
Even estranged family members have a right to receive inheritance. The best drafted Will in the world will not stand up when the legal obligations of a Will maker to provide for their family have been overlooked.
Let me give you an example. A decision was made just last month by the District Court in Brisbane for two adult children to benefit from their father’s estate, despite his expressed wishes to the contrary. The children had not been a part of their father’s life for many years and were not included in his Will, but were together awarded 40% of his estate.
As is commonplace in law, there is always an exception to the rule. A judgement was handed down in the Supreme Court in Western Australia earlier this year to disentitle an estranged child from their mother’s estate. This was due to the abusive and violent behaviour of the child towards their mother, causing the child to be excluded from their mother’s life prior to her passing. This was the first judgement of this nature for many years, and will likely only apply in extreme circumstances.
A Will which disinherits a child is likely to fail without there being evidence of extreme circumstances, such as the child’s conduct being to such a degree that they disentitle themselves to a share of the estate. Merely a breakdown in the relationship is not enough to prevent a child from making a claim for further provision from the estate of a deceased parent, particularly if the there is evidence that the parent was a party to the breakdown of the relationship.
To be effective, a client will need specialist estate planning advice, with appropriate strategies to place their assets beyond the reach of a disappointed beneficiary. Please phone Ian Tindale or Emily O’Brien on 07 3223 6100 if you want to discuss such strategies that may be suitable for you or your clients.