Stop and think before leaving an adult child out of your Will

Before deciding to leave an adult child out of your will, stop and think of the consequences, because your executor will be left with the difficult task of responding to a family provision claim by the adult child that they have been left out of the will entirely, or perhaps left a merely tokenistic or nominal amount.

A family provision claim is a claim, by an eligible person (in this case an adult child) that a deceased person failed to make adequate provision for their proper maintenance and support in their will. The application must be filed with the court within 9 months of the deceased’s date of death.

Assessing the prospects of success and negotiating a settlement is not an exact mathematical or scientific exercise. Determining what provision ought to have been made has been described as an “instinctive synthesis that takes into account all the relevant factors and gives them due weight”. There is not therefore one right answer, and indeed, reasonable minds may well differ as to the provision that ought to have been made. This is the nub of the difficulty facing the executor.

When confronted with a family provision claim under section 40(1) of The Succession Act (Qld) the court asks two fundamental questions. The first question is whether adequate provision for the applicant’s proper maintenance and support was made. If adequate provision was not made, then the second question is what provision should be ordered instead, keeping in mind these 10 general principles:

1. The relationship between parent and child changes when the child attains adulthood.
2. In general terms what the community expects of a parent is to raise and educate their child to the very best of their ability while they remain a child. However, when a child becomes an adult, the expectation changes and becomes something like to assist them with tertiary education, where that is feasible, or if funds allow to provide them with a start in life such as a deposit on a home
3. To be clear, the community does not expect a parent in ordinary circumstances to provide an unencumbered house for their child, or to set their child up in a position where they can acquire a house encumbered. Nor does the community expect a parent ought to look after the child for the rest of the child’s life and into retirement. Especially if there is someone else, such a spouse, who has the primary obligation to do this.
4. If an adult child remains a dependent of a parent, then the community expectation is that the parent will make provision to fulfill that ongoing dependency after their death.
5. Where an adult child falls on hard times and if there are assets available, then the community expects a buffer be provided against life’s contingencies. Sometimes an adult child may have been unable to accumulate superannuation or make other provision for their retirement, because of ill-health or other misfortune not being their own fault. In such circumstances, some provision to prevent them from becoming destitute is expected.
6. There is no need for the adult child to show they have some special need or some special claim. Generally, the need for financial security, that is to say a fund to protect against the ordinary vicissitudes of life, is generally enough to make a successful claim.
7. If the applicant is unable to earn, or has limited means of earning an income, this will generally be enough for a successful claim.
8. The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim (i.e. proving their needs).
9. The focus is always on the applicant’s need for maintenance and support. However, the larger the estate the more that is expected to be provided for contingencies, even remote contingencies which may arise in the future.
10. A “wise and just” parent will also recognize that disharmony between parent and child is almost inevitable and that in family relationships hurts are inflicted or suffered, sometimes consciously and sometimes unconsciously. Regrettably, this is part of family life. A parent who is “just” as well as “wise” will not allow such disharmony or disappointment to bind them to the needs of their child for maintenance, education and advancement of life.

Before proposing to exclude a child from your will or limit the gift for that child it is prudent to seek legal advice from one of our experienced Estate Lawyers.

Call Madsen Law today phone (07) 3209 7744.