Post Will

Can a disenherited adult child challenge the will?

I am seeing a lot more adult children excluded from benefiting from a parent’s will these days. According to the parents it is often for good reason.

New legislation requires the Court deciding disputes over wills, to have regard to the deceased’s reasons for making the will, but in particular- if there is any evidence of those reasons.  Previously the Court was able to accept the deceased’s reasons for not providing for an adult child in the Will, whether or not the evidence was in writing.

Why does a parent exclude an adult child from their will anyway?

From my experience, I see the following being the most common reasons that people give for excluding adult children in their will:

  • the adult child has turned against them without justification and refused to contact them for many years;
  • the adult child is a drug addict and had a history of wasting money;
  • the adult child has never repaid the parent a loan made to them;
  • the adult child refuses to take care of the elderly and frail will maker;
  • the adult child is financially well off compared to their brothers and sisters; and
  • the adult child has been violent to their parent.

What does the Court have to take into account when deciding if a will is unfair?  In Victoria the Administration and Probate Act sets out the factors:

Factors taken into account to change the outcome of  the unfair will

(1)     In making a family provision order, the Court must have regard to—

(a)     the deceased’s will, if any; and

(b)     any evidence of the deceased’s reasons for making the dispositions in the deceased’s will (if any); and

(c)     any other evidence of the deceased’s intentions in relation to providing for the eligible person.

(2)     In making a family provision order, the Court may have regard to the following criteria—

(a)     any family or other relationship between the deceased and the eligible person, including—

(i)     the nature of the relationship; and

(ii)     if relevant, the length of the relationship;

(b)     any obligations or responsibilities of the deceased to—

(i)     the eligible person; and

(ii)     any other eligible person; and

(iii)     the beneficiaries of the estate;

(c)     the size and nature of the estate of the deceased and any charges and liabilities to which the estate is subject;

(d)     the financial resources, including earning capacity, and the financial needs at the time of the hearing and for the foreseeable future of—

(i)     the eligible person; and

(ii)     any other eligible person; and

(iii)     any beneficiary of the estate;

(e)     any physical, mental or intellectual disability of any eligible person or any beneficiary of the estate;

(f)     the age of the eligible person;

(g)     any contribution (not for adequate consideration) of the eligible person to—

(i)     building up the estate; or

(ii)     the welfare of the deceased or the deceased’s family;

(h)     any benefits previously given by the deceased to any eligible person or to any beneficiary;

(i)     whether the eligible person was being maintained by the deceased before that deceased’s death either wholly or partly and, if the Court considers it relevant, the extent to which and the basis on which the deceased had done so;

(j)     the liability of any other person to maintain the eligible person;

(k)     the character and conduct of the eligible person or any other person;

(l)     the effects a family provision order would have on the amounts received from the deceased’s estate by other beneficiaries;

(m)     any other matter the Court considers relevant

How do you get around unjustified challenges by greedy children that bleed the estate?

As you can see there are a lot of factors that can be included in the assessment including any other “relevant” matter not specified.  These are the reasons for a lot of wills being challenged. This can infuriate many will makers who say they should be able to otherwise make their will the way they want even if it minimises the benefits payable to one or more of their adult children after their death.

My strongest advice is to carefully draft a will that does do so and provide any evidence in support if possible with the making an storing of the executed will.   Evidence can include a carefully drafted statement (executed by the will maker that sets out considered and thought out reasons for minimising an adult child’s benefit) or responses to letters of demand for an unpaid loan as an example.  This may assist the executor in defending claims to the estate.

Where do I stand?
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As of 31 March 2023, Rigoli Lawyers was acquired by Michael Benjamin & Associates and many staff and clients joined the team at Michael Benjamin & Associates. Rigoli Lawyers is now incorporated within Michael Benjamin & Associates.