There’s a lot to be studied when knowing how to disinherit a child in a Will, as it is more than just leaving their name out of a Will. Several people underestimate the impacts of significant life events when we’re talking about Wills.
Making a Will that replaces an existing one is one answer to the question of how to disinherit a child in a Will. Leaving someone significant person like a child out of a Will without reason can lead to many disputes. This won’t simply prevent children from contesting one’s Will and they’ll simply think that they were just forgotten.
This article can help when one who is looking at how to disinherit a child in a Will.
How To Disinherit A Child In A Will Australia?
Disinheriting a child in a Will in Australia is possible, but not necessarily easy to do. Australian law provides its citizens the freedom to draft up a Will. The law also allows the Will-maker to nominate who their estate will be distributed upon their passing, but are their children significantly included?
When a parent is thinking of how to disinherit a child in a Will, there are reasons like conflicts and maybe the child has no contact with the Will-maker. For example, parents might have disagreements with their children like:
- Differences in religious beliefs
- Choice of lifestyle
- Deep-rooted family issues
The factors may lead to estrangement and the parent may feel no obligation to provide for their children who are no longer involved in their lives. Sometimes a testator also has a good reason for disinheriting a child in a Will.
A testator may also disinherit a child in a Will like providing a different beneficiary for fair reasons. For example, a parent has already provided substantial help and assistance to one child (like an early inheritance) and decided that their remaining assets can be left for the other children/persons.
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.
There are some basic rules to consider when discussing how to disinherit a child in a Will. However, in general, most children are given an inheritance from their parents, unless the parent excludes them as a beneficiary. A judge can interrupt this decision by the Will-maker though if he/she sees fit.
Adult children can contest a Will if they feel they’ve been unfairly left out. If the matter cannot be settled through proper mediation with the Will’s executor, then it is the court’s responsibility to decide how credible the claim is. Here are a few factors that the court will consider before making a decision:
- 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 credible and genuine attempt to reconcile with their parent
- The size of the deceased’s estate
How To Disinherit A Child In A Will If Your Partner Is Involved
There may also be instances where a partner is involved in these cases. A recommended approach in such cases is to revoke the Will. Creating a new Will before destroying a former Will ensures that an individual has a legal Will at all times. Alternatively, a Will can also be revoked by writing a legal document stating that they wish for it to be revoked, either wholly or partly.
Here are a few instances that may lead to revocation of a Will:
Marriage
This instance automatically revokes any Will that existed prior to marriage even if a partner’s spouse is the person named as the sole beneficiary. If one is looking to make a Will prior to marriage, they can get around this by including a Contemplation of Marriage clause.
Divorce
When one is divorcing, their Will is either revoked or the section 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 immediately after a divorce has been granted legally. A new Will ensures someone that they won’t die intestate and they will still provide for any beneficiaries, children, and dependants.
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 a deceased has in their Will for them.
Children Disputing A Will
If a parent is adamant about knowing how to disinherit a child in a Will and prevent them from receiving assets or receiving parts of their estate, they must act early in structuring their assets.
This may include having joint bank accounts and property titles so the assets transfer to the other trusted holder, rather than becoming part of the deceased’s estate. Transferring some or the entirety of an asset while an individual is alive is a risky move as it can come with complex financial implications.
When a child is disinherited from a Will, there may still be a way for them to receive their deceased parent’s assets. Children are entitled to make a legal claim against an estate and the court will consider these claims, but it will also keep in mind the impact it has on other beneficiaries and claimants.
Importance Of Seeking Legal Advice
When one is asking how to disinherit a child is to seek proper legal advice as this may affect current and further situations. Children may fall into more disputes and conflicts and this just spells more trouble when they want to make legal claims in court.
At JB Solicitors, our Wills and Estate Planning lawyers can aid you in such cases as knowing how to disinherit a child in a Will. Our fixed-fee prices also help our clients to have a clear sense of legal costs when availing of our services.
Reach out to JB Solicitors today
