Australia, like most countries, acknowledges the legal rights of disinherited child or children when it comes to contesting a Will. Upon the Willmaker’s death, the “executor” selected by the Will should distribute the property. This is in accordance with the specifics and proportions indicated in the Will. An executor carries out the contents of a Will.
However, the executor must follow certain laws and jurisdictions. They may be subject to certain restrictions that limit their ability to carry out the Will-maker’s wishes. For example, he/she would have to pay off the deceased person’s taxes and debts. A person left out of a Will should receive sufficient compensation according to the Court.
Although it may appear simple, most statutes provide a definition of the term “child” so as to avoid conflict. A child born out of a natural mother and father’s marriage is the most common definition. Importantly, children born outside of marriage or in a domestic partnership are considered children for succession reason. This includes adopted children as well.
Most state laws allow children who fit the requirements to file a claim within 12 months after their parent’s death. However, in Victoria, it is six months. Nonetheless, the Court has the authority to extend this time limit in extreme instances.
When a child is born as a result of a fertilisation process, is adopted, or when the child has never had direct contact with the parent from a young age, the parent-child relationship can become problematic. When talking about the legal rights of disinherited child or children, this article will discuss several factors associated with it.
Can You Disinherit A Child?
In general, a deceased can disinherit a child and prohibit them from having legal rights from their estate. To disinherit a child, one has to make it clear in their Will that they don’t want them to inherit anything.
One might also write their statement to exclude any of their child’s descendants, effectively disinheriting their grandchildren, great-grandchildren, and future generations descended from them. There are a variety of reasons why a parent might want to disinherit a child:
- The children previously received significant financial contributions over the parent’s lifetime.
- The parents have set up trust or beneficiary designations for retirement savings and life insurance policies to ensure that they receive an inheritance.
- The parent wishes to leave the majority of their estate to a family member, a friend, or a charitable organisation.
- Parents are disinheriting stepchildren from a marriage that ended in divorce/separation.
- The parents and the child do not have a relationship.
- The concerns about the child’s lifestyle choices have created a conflict of interest.
This also applies to grown-up children. If a parent has children who are minors, he or she cannot legally exclude them from their Will. As long as parents leave assets in their estate, state law requires that those assets be used to pay for child support.
What Are The Legal Rights Of Disinherited Child?
It’s possible that simply leaving an adult child out of a person’s Will isn’t enough to strip off the legal rights of disinherited child or children. One shouldn’t simply cross someone’s name out of an existing Will to prevent them from inheriting.
A child cannot challenge a parent’s choice to disinherit them only because they believe it is unjust. Children must have legal standing to challenge a Will or trust. A child can contest a parent’s Will if:
- They suspect that their parents were under the influence of alcohol or drugs when drafting the Will.
- The Will was not witnessed correctly.
- They believe their parents was forced to make the Will or undue influence
There are legal rights of disinherited child to contest a Will or trust after being disinherited. Particularly if children believe that a factual error resulted in their parents leaving them out. This is likely to apply only in situations when there is a disagreement about lifestyle choices.
There are legal rights of disinherited child or children that can contest their parents’ Will or trust.
To contest a Will, a child will need to go through probate court. The court will set a hearing date on which the child can present whatever evidence they have to back their claim.
After that, the court will consider the facts and make a conclusion. If the child wins their case, they will be entitled to a portion of the estate.
A Case Regarding Legal Rights Of Disinherited Child
In the recent case of Jung Vs. Poole 2021, the deceased fathered twins with a woman he was seeing in 1986, although they were never married. Their mother died while the twins were only four years old. Their mother named her close friends, the Fandricks, as joint guardians in her will.
The Court did, however, decide in favour of the Fandricks as custodial parents, but allowed the deceased extensive parenting time because the Court recognised the deceased’s genuine desire to be a father to the twins. The Court also mandated that the deceased be consulted on significant life decisions impacting the twins, including schooling and health.
The deceased vanished from the twins’ lives for a year before reappearing to ask the twins to see him in Vancouver because their grandmother was dying. The Fandricks turned down this request because they didn’t want the twins to have to go through the trauma of their mother’s death again.
This was the deceased’s last contact with both the Fandricks and the twins. During his lifetime, the deceased made two Wills, one after the custody trial and the other specifically disinheriting the twins. He left his whole inheritance, estimated at roughly $900,000 to two of his close friends.
The Twin’s Claims
The twins, who are now 34 years old, claimed that the deceased owed them a moral obligation to provide for them in his Will. The deceased was just unable to accept or move on from the fact that the twins did not make any effort to see or contact him. Disinheriting the twins was his way of retaliating.
He also blamed the twins for their broken relationship, but the Court determined that his viewpoints were neither valid nor realistic. In conclusion, the Court gave each daughter 35 percent of the deceased’s assets, with the remaining going to the original beneficiaries of the will.
This rendered the Will adequate, just, and equitable.
Importance Of Seeking Legal Advice
While it is true that there are legal rights for disinherited child or children, chances are that each case will vary from state to state. JB Solicitors advises that seeking legal aid can help disinherited children in contesting a Will if they’ve been left out.
Our team has a group of solicitors who handle Wills and Estate Planning to help our clients in reaching satisfactory resolutions.
Contact JB Solicitors today
