Leaving Loved Ones Out of Your Will

Families and family dynamics can be complex these days, trying to balance being fair to children from prior marriages with children from a current partner or when family relations have been strained for a variety of reasons. Making a will can be complicated and stressful.

A question often asked is – “Can I legally leave my partner or children out of my will and effectively disinherit them”? The answer is yes you can legally, but there are risks and you leave your estate open to be contested.

In Victoria (and similarly in most States) any child including an adult child or stepchild can bring a claim under Testator’s Family Maintenance provisions (TFM) under Part IV of the Administration and Probate Act (VIC). You may have read about these TFM claims in the media with high profile families.

The Act empowers the Court to make provision for an eligible person from a deceased estate if satisfied the will maker made inadequate provision for that person in their Will.

So even where you have consciously decided not to leave a benefit and you have set out reasons for doing so in your will (or via a separate statement of intention) the Court has an overriding power to adjust your will and make provision for a spouse, child or dependent to whom you left no or inadequate benefit.

1. They have some standing and familial relationship with the will maker – that is they are a partner, spouse, child or stepchild or otherwise dependent on the will maker;
2. The will maker has a “moral” duty to that person.
3. The eligible person has need for provision.

1. The child has been estranged from them over many years and there is no longer any relationship or dependence on the will maker to consider leaving them a benefit.
2. The will maker gave the child significant benefits during their lifetime and there was therefore no need nor entitlement to a further benefit.
3. The child has no disability, is financially sound and independent.
4. They have accumulated their own wealth and have no need for further provision.
5. There has been abuse or a breakdown in the relationship.

Moral duty is a concept the Court will consider as to what the community may consider appropriate, for example that parents should leave their estate to their children unless there are very good reasons not to do so.

Where it is an adult child claim, the Court must consider the degree to which they are incapable, by reasonable means, of adequately providing for their own proper maintenance and support.

If the court, considers there is a moral duty, the Court then considers the degree to which the distribution of the estate fails to make adequate provision for the proper maintenance and support of the claimant.

To do this, the Court places itself in the position of the will maker and considers what provision, if any, ought to have been made in the circumstances treating the will maker as a wise and just person. The Court will consider any breakdown in the relationship or for example abusive conduct from the child.

Here is the issue, in that if no benefit at all is given in a will, the Court may more readily consider there should have been some provision made whereas if the will maker (giving reasons) has left a particular child or beneficiary a benefit less than what may be considered appropriate, the Court may then be less likely to make any further provision.

Setting out clear reasons why you leave no benefit to a partner or child will support the will being upheld by a Court, but it will not stop a claim being made.

However, statements of intention in the will, a separate letter or statement will not stop a disgruntled child from contesting the estate even though the burden of establishing their “claim” falls on them. The bar is quite low and usually the legal costs involved are so high that most matters will settle at mediation.

The Court cannot simply disregard the deceased’s Will and wishes, and they will examine the will, and consider the following factors to determine if further provision should be made, such as:

1. The nature of the relationship between the child and the will-maker.
2. Any obligation for the will maker parent to provide for the child.
3. The size and nature of the estate including any estate liabilities.
4. The financial resources, earning capacity, and financial needs of the child and needs of other eligible persons.
5. The age and any physical or intellectual disability of the child.
6. Any contribution made by the child to building the will makers wealth.
7. Any benefit given during the will makers lifetime to the child or other eligible person to whom they owed a moral duty.
8. Whether the child was dependent on or maintained by the will maker before their death.
9. Any obligations on other persons to maintain the child.
10. The character and conduct of the child; and
11. The effect any Court order would have on the other beneficiaries.

Once a claim is issued, the Court will order the parties to attend mediation to avoid costly and lengthy litigation. If the parties are unable to resolve the dispute at mediation, the matter proceeds to a hearing. Other beneficiaries in the will can file affidavits setting out their position and the impact of the claim on them.

In most cases, the legal costs incurred in defending a family provision claim will be paid by the estate, provided the Executor has acted reasonably and demonstrated a willingness to negotiate a settlement to avoid costly and lengthy litigation and act in the best interests of the beneficiaries. The Executors role is to uphold the terms of the Will.

The claimant is liable for their own legal costs however it is often the case that as part of any mediation settlement the parties agree the claimant’s costs are paid from the estate.