Wills and Estrangement

What happens if I try to remove one of my kids from my will?

The breakdown of a relationship between a parent and a child can often cause real and long lasting feelings of sadness, loss and anxiety.

Some of the common questions we get asked when this sort of thing happens is:

  • “What if I don’t think that it would be morally right to benefit one of my children under my will?”

  • “Is this something that I am are allowed to do?”

  • “What happens if my children try to challenge a will in court?”

  • “Should I tell my children that they aren’t going to get anything?”

These are all difficult questions – and the answer to them will often depend upon an individual’s circumstances – but this article will try to do the best to answer them.

What causes a breakdown in relations?

A breakdown in a relationship within a family can be caused by many factors. These can often include:

  • substance abuse problems;

  • gambling issues; and

  • abusive relationships.

Sometimes even hurtful things such as children choosing not to participate in family functions or grandparents not getting to see their grandchildren can be enough to the estrangement of children.

Am I allowed to remove one of my kids from my will if I want?

The short answer is yes.

As a general rule, people making a will are entitled to give their property to whoever they want.  This includes choosing to make no provision for a child with whom there has been an irrevocable breakdown in relations.

When are my children allowed to challenge my will?

Under the Succession Act (2006) NSW a court is empowered to make an order for a child’s proper maintenance, education or advancement in life. The ability to make a claim is also not just limited to children – spouses, ex-spouses and dependants can all fall into the category of people who are allowed to make a claim against your estate.

The reason why this law exists is so that children, partners and dependants who have a reasonable expectation that they are looked after aren’t left in a situation where they can’t provide for themselves.

The success of these “family provision” claims and usually depend on a number of factors.  These include:

  • the nature and the extent of the relationship;

  • the ability for a person making a claim to provide for themselves in life;

  • whether the person making the will gave due consideration to their obligations to provide for certain dependants, and

  • the extent to which the person making the claim might responsible for a breakdown in the relationship with their parents.

How often does a family provision claim succeed?

There used to be a time when most people who made a family provision claim would succeed – however this trend has begun to change in recent times.

In the recent case of Olsen v Olsen [2019] NSWSC 217 Pembroke J found that:

‘An adult son is, I think, prima facie able to ‘maintain and support’ himself, and some special need or some special claim must, generally speaking, be shown to justify intervention by the Court under the Act’.

His honour then went on to say that there needed to be due recognition to the importance of the testamentary freedom and that the plaintiff had failed to show that the sum claimed was necessary proper maintenance or advancement in life.

Every case will depend upon the facts in the individual case – but as a general will there needs the person making the claim will need to demonstrate some special need that they have.

How do I stop my children from challenging my will?

You can’t stop someone from trying to challenge your Will – but you can make it harder for a person to make a successful challenge.

A parent who wants to make no provision for a child should consider signing a statutory declaration to accompany their will. This statutory declaration should explain why a parent has chosen to draft their will in a certain way. It should also show that the parent has given due consideration to the needs and requirements of each of their children.

Generally statutory declarations should include information such as:

  1. What was the nature of your relationship with your children prior to any estrangement?

  2. What were the circumstances of any estrangement, what was said and done by each party and when?

  3. What reasons were there for the estrangement? Was any particular person at fault?

  4. How long did the estrangement last?

  5. Was there any attempted reconciliation? If so, when and in what circumstances?

  6. Did the estrangement cause emotional upset?

  7. If there was emotional upset what is the evidence of that?

The decision to tell a child that they will not receive a benefit will depend upon each individual’s circumstances and the family dynamic in each family.

Who else is entitled to make a claim against my estate?

The list of people who are entitled to make a family provision claim is listed section 57 of the Succession Act and include:

  1. A wife or husband;

  2. A de facto partner of the deceased;

  3. A former wife or husband of the deceased;

  4. A child of the deceased (including adopted and step-children)1;

  5. A dependant (wholly or partly) of the deceased;

  6. A grandchild of the deceased;

  7. A person who was a member of the deceased’s household at any time; and

  8. A person with whom the deceased was living in a close personal relationship as at the date of death.

What are the alternatives to removing a child from my will?

Ideally, the best alternative to removing a child from a will is to find a way to effect a reconciliation with an estranged child.  We understand that such a reconciliation isn’t always possible – but if it’s possible then it certainly worth a try.

Some of the other options to removing a child from your will include making a smaller but adequate provision for an estranged the child.  This gift makes it less likely that an estranged child will decide to bring a family provision claim.

Other possible options include creating testamentary trusts whereby money is given to a trustee to manage.  Under these trusts a trustee is tasked with ensuring that the estranged child is properly looked after and that they do not misuse or misspend money.

While Testamentary trusts can be expensive and difficult to manage they also have significant tax advantages particularly if there are children or grandchildren who are under the age of eighteen.

Want to know more?

Contact our offices and we will arrange an appointment to discuss these issues further. The first consultation session is free!

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O’Brien Connors & Kennett Solicitors