The time has come for you to plan out your Will and consider which of your loved ones will get what when you pass away.
This process can be complicated for some because you may have estranged children or a child you wish to not leave an equal share of your estate to or maybe even leave nothing to. The complicated part here is that all your children, regardless of what is stated in your Will, have a legitimate claim to your estate on the simple fact they are your children.
If that is the case, what can you do in this situation?
The purpose of this article is to discuss how to disinherit a child in a Will in Australia, whether it is possible and what measures can be undertaken.
Can I Disinherit a Child In a Will In Australia?
Generally speaking, most children are given an inheritance from their parents. The only exception to this is if the parent explicitly excludes them as a beneficiary. Unfortunately, this doesn’t fully protect your wishes as a judge may decide to overrule the person’s wishes making the Will to their discretion.
In such an instance, the child making a claim to your estate must explain to the Court how they are entitled to a shared of your deceased estate. For example, in the typical case of an estranged child – they must attempt to provide that there was a genuine attempt made to reconcile with you before your death.
Where an adult child feels as though they have been unfairly left out of a Will of a parent, they can attempt to settle the matter through mediation the executor of the Will. The Court will then assess whether they are entitled to a portion of your estate based on considering the following issues:
- The amount of time they have been estranged from you
- Their financial situation, and if they need part of the estate
- The size of the deceased estate
- If they have been estranged, the reasons for the estrangement
- Whether any genuine attempts have been made to reconcile between you and your child
Can I Prevent My Children From Disputing My Will?
In NSW, there isn’t much you can do to prevent an adult child of yours from disputing your Will.
Adult children of yours who are in dire financial shape will mainly have a legal claim to the assets in your estate.
If, for whatever reason, you are confident that you do not want a particular child of yours to inherit a part of your estate, there are some measures you can undertake to make the process of contesting your Will more difficult.
Every State and Territory will have different rules and laws about the matter; however, there are some things you may wish to consider if you desire to disinherit a child in a Will in Australia in general.
Alternatives Methods To Disinheriting a Child In a Will In Australia
1. Obtaining the advice of an experienced Wills & Estates lawyer when drafting your Will: A strategic decision here would be to cooperatively work with your lawyer to make a reasonable provision for the child you want to disinherit. Even though you may want to leave them little to nothing, leaving them something may discourage them from contesting the Will and stop them from claiming anything further if they decide to pursue the matter.
2. Transferring some or all of your assets before you pass away: This is risky while you are still alive and can have disastrous financial implications if things do not go to plan. Please get some advice from your accountant and lawyer before considering this step so they can alert you to the ramifications of your decision in your particular circumstances.
3. Structuring your assets, so they do not form part of your estate: This includes joining property titles and bank accounts. Accordingly, when you pass away, the assets will transfer to the joint holder of those assets instead of forming part of your estate.
Importance of Seeking Legal Advice
When discussing matters such as how to disinherit a child a will in Australia, it is important to seek out legal advice from an experienced Wills & Estates lawyer to discuss your particular circumstances.
Please feel free to contact our team today to discuss your matter.
Here at JB Solicitors, we’ll make the process as pain-free as possible. We have fixed-fee pricing for family law, giving you a clear sense of the costs from the start, and we will be sure to help you out every step of the way.
With years of experience under our belt, we pride ourselves on making each client’s family law experience as positive as possible.
Contact JB Solicitors today to speak with one of our friendly and experienced family lawyers.
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