Not every family has the perfect relationship, and sometimes it could take a turn for the worse. Even you might have had arguments with your parents or children, and have made up since. However, some family relationships just end up in disputes. Sometimes this leads to parents asking how to disinherit a child in a Will in Australia.
Australia has strict Wills and estate laws. So, parents should think twice if they do want to disinherit their child in their Wills. Essentially, there is one clear answer to the question at hand. You can explicitly state in your Will that you do not wish for your child to receive any of your assets.
However, the Judge may overrule the wish of the Will-maker or the testator. How? A child can successfully contest the Will on reasonable grounds. Do you think your child has the ability or power to do this? Are you dead-set on excluding your child from your Will and making sure it stays that way?
Let’s find out how and explore a case study that explains a case about excluding a child from one’s Will.
The Simplest Approach To Disinheriting a Child in a Will
If you want to know how to disinherit a child in a will in Australia? Then choose the simplest approach: make a new will.
Say you have already included them in your Will. You can always update your Will in case you want to make changes. This also doesn’t apply to excluding people in your Will. You can also add properties that you want to give to current beneficiaries, change your estate plan, and include new beneficiaries.
What Can an Estranged Child Do?
Parents should decide carefully if they want to estrange their child or leave them out of the Will. Leaving someone significant, such as a child, out of a Will without a reason can lead to Will disputes. If the child can make a successful claim to demonstrate that they are entitled to the estate of the Will-maker, the judge can decide to override the Will-maker’s wish. In this circumstance, the child can make a convincing case to the court. This will ultimately depend on various grounds.
Can Children Use a Family Provision Claim?
Adult children can contest a Will if they feel they’ve been unfairly left out. They are one of the eligible persons when it comes to filing a family provision claim. A family provision claim allows adult children to contest a Will and demonstrate their entitlement to receive a portion of the estate.
Indeed, the child is entitled to make a legal claim against the estate, and the court will consider these claims. However, the court will also keep in mind the impact it has on other beneficiaries and claimants. When assessing the family provision claim of the disinherited child, the court will consider the following factors:
- The financial stability of the child
- The duration of estrangement between the parent and the child
- The reason for estrangement and whether the child made a reasonable and genuine attempt to reconcile with their parent
- The size of the deceased’s estate
If the parent and the child choose to reconcile, then they can settle their legal dispute through mediation. Where the matter cannot be settled in this manner, then the court can consider the credibility of the family provision claim.
How to Disinherit a Child in a Will in Australia: Reasons for Estrangement
When a parent is thinking of how to disinherit a child in a Will, perhaps they have had significant conflicts that have led to estrangement. For example, parents might have disagreements with their children due to:
- Differences in religious beliefs
- Choice of lifestyle
- Deep-rooted family issues
- Issues with their spouses
- Prolonged disputes that got worse because of terrible communication
- Financial issues
- Abuse
The factors above may lead to estrangement, and the parent may no longer feel obligated to provide for their children. In such cases, the testator may disinherit their child by clearly stating this. For extreme cases, it’s advisable for parents to record their reasons for estranging their child. They will need such records to avoid Will disputes in the future.
A parent may also wonder how to disinherit a child in a Will in Australia, also for fair reasons, such if they have already provided substantial help and assistance to that child (like an early inheritance). This way, their remaining assets can be left for the other beneficiaries.
The provisions in the law accommodate these types of situations, and the court will ask what a reasonable testator would have done in the same instance. If a reasonable testator would have disinherited the person, then the court will not interfere with the provisions of the Will.
What Else Can Revoke a Will?
Marriage
Marriage can automatically revoke any Will that existed. Spouses naturally have the entitlement to receive the assets of their spouse when they die. If one is looking to make a Will before marriage, they can get around this by including a Contemplation of Marriage clause.
Divorce
When you divorce, your Will is either revoked or a clause relating to your former spouse is considered null and void. After a divorce, the entitlements from the estate which were allotted to the former spouse now form part of their residuary estate. Residuary estates are assets that remain after all gifts are bequeathed and debts, taxes, and fees are paid.
Making a Will that replaces an existing one is an important thing to do after a divorce. A new Will ensures that someone won’t die intestate, and it will still provide for any beneficiaries, children, and dependents.
Separation
One’s ex-partner is not automatically disinherited from a deceased’s Will, especially when they are financially dependent on them. In Australia, a partner must have been separated from their spouse for at least a year, so if a partner dies before the divorce was finalised, the estranged former spouse will receive everything the deceased has in their Will for them.
Destroying the Will
Yes, you can revoke a Will by simply destroying it, like tearing it apart or burning it. This is valid as long as the testator did it and to destroy the Will. The testator can also revoke their Will through a written declaration that states their intention to revoke their Will.
Case Study: Portis v Green [2017] NSWSC 1489
In the case of Portis v Green [2017], we’ll explore a case about a man who excluded his son and the son’s granddaughters in his Will. Mr Ronald Portis, who died in 2016, clearly and explicitly stated in his Will that he didn’t wish his son (Mr Paul Portis) and his granddaughters to inherit anything from his estate.
In his statement, Mr Ronald Portis states various reasons as to why he wanted to disinherit Mr Paul from his Will, including an emotional detachment. Mr Ronald instead leaves his estate and property to the United Grand Lodge of NSW & ACT Museum.
However, the Supreme Court found that the estrangement was not a matter that should be taken into account against Paul and his claim for provision. In a previous Will, Mr Ronald Portis had intended to leave everything in his estate to his son, Paul. So, why did Ronald steer clear of this decision?
The court found that it is due to Paul’s marital circumstances, following that initial Will, and his lifestyle choices that included motorcycling activities. Because of this, Mr Ronald Portis decided to remove Paul from his Will.
How Did the Court Decide in This Case?
Therefore, the court questioned whether an adequate provision was made for Mr Paul, and decided that the provision was not adequate for Mr Paul. This was because of Mr Paul’s financial circumstances, including his future earning capacity, debts he will never be able to repay and his grossly inadequate superannuation.
The court decided that reasonable provision will be made to Mr Paul, as his only surviving son, while still respecting the wishes of the testator to provide some portion of his estate to the Museum.
As the Testator, Can You Avoid Future Disputes if You Disinherit Your Child in the Will?
Depending on the state and territory in Australia, the laws allow adult children to dispute the Will. For example, in NSW, the Succession Act 2006 states that adult children can dispute the Will; therefore, it becomes a bit challenging for the testator to avoid future disputes. However, they can consider alternative paths.
Firstly, obtaining professional legal advice before the parent explicitly excludes the child from their Will is ideal. This is because lawyers can make suggestions so as to avoid future disputes from the disinherited child or the estranged child.
For example, Wills and estate lawyers can find a way to make minor provisions for the child, thereby discouraging them from contesting the Will and stopping them from claiming further provision if they decide to pursue the matter.
Secondly, if the parent wants to learn about how to disinherit a child in a Will in Australia, chances are they are less likely to consider making minor provisions of their estate. In such cases, they can consider structuring their assets so that they are not included under your estate provision.
For instance, in the case of joint bank accounts or property titles, the assets will transfer to the other holder. Due to the complicated nature of such matters, it is extremely important to speak with legal professionals.
List Your Rightful Beneficiaries With Us Today
In our case study, we saw that the court still gave a portion of the father to his son and the granddaughters. Despite the father’s wishes to exclude them, Australian law still found a way to provide for the estranged child. As a respect to the father’s wishes, the court still followed his wishes partially.
Could things have gone differently if the father had shown more reasons to fully exclude his child from his Will? What if the child had more than enough reason to make his father include him again in his Will? Should the father have provided more financial assistance to his child? So many questions and possibilities to explore, and any decisions around Wills can have complex financial implications.
For these reasons, it’s wise to speak with a lawyer before any significant decision you make becomes paramount, as most children can dispute the Will. The financial and emotional impact of these matters is intense. Family lawyers are adept at providing necessary professional and legal support to aid you during such matters and legal challenges. Need to exclude a child from your Will? Are there any changes you want in your current Will?
At JB Solicitors, our Wills and Estate Planning lawyers can help you with such matters. Reach out to JB Solicitors today.
