When provisions in a Will for an adult child inadequate

Home Blog When provisions in a Will for an adult child inadequate

Published by Preston Law on 23/09/2021

Family relationships can be complex, including those between a parent and their child, and estrangement within a family can occur for many different reasons. A parent and child may have a tense relationship due to a particular incident that occurred in the past, or because one party doesn’t like a choice the other party has made, such as their choice of partner or their parenting style. Sometimes an adult child can be considered the ‘black sheep’ of the family simply because they have grown apart or don’t keep in touch with their parents.

Tension and animosity can sometimes lead parents to be unwilling to provide for their child/ren in their Will, however, being disconnected from family may not always be a good enough excuse to exclude someone from a Will or deem it acceptable in the eyes of the law.

I want to leave my child out of my Will. Can they contest it?

Yes. If you choose to leave a child out of your Will, they are eligible to contest the Will in an attempt to seek further provision from the estate even if you have been estranged from them for some time.

Are there ways to mitigate my estranged child from being awarded a large part of my estate?

If you are a parent who wishes to exclude your child from your Will, you should seek professional legal advice so you can establish an estate plan that will help to mitigate the risk of your Will being contested after you pass away. As part of your estate place, a legal practitioner may advise you on steps that can be taken to assist in this regard which may include including a separate document with your Will that set contains reasons why certain family members, such as children, have been left out of the Will or why they have been bequeathed a portion of the estate that is less than others are receiving.

I have been left out of my parents Will. What can I do?

As a child, if you have not been provided for by your parent’s in their Will in a way you believe is adequate (for example, your siblings received a portion of the estate that was disproportionate to what you were gifted) or you were not named in their Will at all, you are able to bring a claim against the estate for further provisions. You should seek the assistance of an experienced Wills and Estates lawyer who can advise you on how to navigate this area of the law.

Are there time limits on bringing a claim against an estate?

Strict time limits apply to family provision applications, so it is important that potential applicants take action quickly.

In Queensland, any claimant making an application for further provisions has just six months from the date of death to provide written notice to the Executor or administrator of the estate about their intention to bring an application against the estate.

Formal notice must be issued within the time limit, otherwise, the assets of the estate may be distributed.

Once formal notice has been issued an applicant has up to nine months from the date of death to file formal Court proceedings. This time frame must be adhered to or the applicant risks losing the right of action completely. In some circumstances, the timeframe may be extended at the discretion of the Court.

Is an estranged child entitled to a copy of the Will?

If a child is estranged from their parent they may not have access to their Will, however, the estranged child may seek a certified copy of the Will from an Executor or administrator of the estate, to which they are entitled. It is recommended that the child makes the request in writing.

How does the Court view estrangement?

A Court will not automatically see estrangement between a parent and child as a reason to disentitle a child from bringing a claim against an estate. The Court will review all the circumstances pertaining to the matter and the reason for the estrangement

What else will the Court consider?

Alongside the nature of the relationship between the parent and child and the cause of the estrangement, a Court will consider the following factors when making a determination about the child’s application for further provisions:

  • the size of the estate;
  • whether the deceased made any provisions for the child in their Will and what they were;
  • whether the deceased had any obligations to the child;
  • the state of the child’s finances;
  • whether the child is already being financially supported;
  • whether the child has any mental, intellectual, or physical disabilities that include, but aren’t limited to, physical, mental or intellectual;
  • the ages of both the child and the deceased;
  • whether the child made any contributions to the estate that would have caused an increase in its value;
  • any other existing claims against the estate; and
  • any other matters that the Court considers are relevant to the case.

Intentionally leaving a child out of a Will can be done, but as this area of the law is complex and unique to each set of circumstances it is highly advisable to seek professional assistance from a Wills and Estates lawyer who understands and can counsel on the best approach. If you would like more information, contact our experienced estate lawyers today on 07 4052 0700.

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