A Will allows you to gift your property to the people or organisations you choose. However, a common assumption is a valid Will cannot be challenged. This is misconception and a valid Will can still be contested in court. A common way to contest a Will is under Family Provisions legislation. We have mentioned previously in another post that challenges under Family Provisions can come from a variety of people. In this post we examine challenges from children. When people think children they normally think young children. Most challenges however come from adult children or estranged children as we will see below.
On what basis can my children challenge?
Challenges most often occur when parents believe children can provide for themselves. Alternatively they believe estranged children have no right to their estate. Unfortunately, Wills that do not make adequate provisions for children (including adult or estranged children) can be challenged. The courts basis for allowing challenges stems from parents having a “moral duty” expected under “community standards” to help with maintenance of their children despite age or relationship. This means even if you believe your children no longer require your maintenance the court does not always agree. In one case a 77 year old estranged daughter challenged her mother’s Will when her mother left her estate to her younger sister. Her challenge was successful despite the fact she had not seen her mother for many years. The estranged daughter’s argument was that she needed support that would normally be expected to come from a deceased estate’s parents.
What can I do to stop my children challenging my Will?
There is no way to stop your children challenging, however you can minimise the risk of disputes. Firstly, as seen from the example above you should always consider your children no matter their age, income or your relationship with them when. Additionally, our key recommendation to all our clients is to always discuss your intentions with your family. This is particularly important if you plan on unequal distribution or leaving particular children out. Communication ensures that there are no surprises when you pass and allows you to openly discuss any concerns that your children may have with your intentions to distribute your estate.
We understand that a Will is a complicated document. If you have any concerns or wish to discuss drafting a Will or any estate planning documents give us a call on (02) 9687 8885 or leave an inquiry on our website and our team of estate lawyers will always be happy to assist.