[April Bradford]

Estranged Children and Contesting Wills: Have Your Say​

It's Sunday which means it's time to have your say!

Today's question was thoughtfully sent in by a member. They've provided this insight to read before the question itself.

'We are encouraged to make a will. The will is supposed to be our intention regarding who receives the proceeds of our Estate, however, did you know that your will and therefore your intention regarding the proceeds of your Estate can be challenged? The challenge can come from your children, even those adults who may have been estranged from you for many years. Also, did you know that the legal challenge can be paid for by your Estate? How do you feel about the possibility of your intentions being disregarded? How would you feel about the money from your Estate being used for this purpose?

So considering this, our question is...
In Australia, children (estranged included) written out of a will can challenge this with the estate. Do you feel this legal loophole is disrespectful to the will writer's wishes and should be corrected?

We strongly encourage comments this week, members, as there is so much to discuss!

We can't wait to hear from you!

 

[Simplelife]

I am in the situation where two of my children have not been included in my will. The clause has been legally worded such to show that they are not a pat of my life and have no claim on my estate. I won’t go into the personal aspects of my will but suffice it to say that from a young age one child made a choice to disrespect me immensely, and do many things to hurt me, some of them illegal, and it was a conscious decision to leave him out. The second child decided she no longer wanted me in her life and I was banned from my grandchildren after being prominent in their lives for the first 5 years of the eldest child’s life (and 3 and 1 for the younger). I have two other children who I am very close with, I have spent many happy times with them and their families and we operate as a family. I believe as my other two children have not contributed to my life or the family life in any way for many years and despite attempts on my part to reconcile have been hurtful in their responses, it is my choice to leave whatever I do to the children who have shared their lives with me and who help me out when I need anything or just be there when I need family. I do not act from spite, I simply don’t see them as part of my life any more and therefore not a family member. I feel what I have to leave is to help my loved family members and my eldest two have chosen not to be included in that family. I find it terrible how the death of one can cause people to come out of the woodwork causing grief to loved ones when in the life of the deceased they have been content to remain outside the family.

 

[Don’sown]

I have a daughter who has been given over $500.00 over the years which her and her husband promised to repay but never have. As such our will is legally written so that we have given our son an amount equal to what our daughter has “stolen “ from us over the years and he has first option to purchase our unit with the sale money being given to our grandchildren in equal amounts.

 

[Zemo]

You can always leave the child a minimum of one dollar. That way, there can be no challenge whatsoever, as well as showing exactly what your feelings are.

 

[Pianomac]

I think it is true that if you leave them just $1.00 each together with a cottersal saying that the will must not be contested, It legally must be adhered to, but as always, get proper legal advice.

 

[Zemo]

I think it is true that if you leave them just $1.00 each together with a cottersal saying that the will must not be contested, It legally must be adhered to, but as always, get proper legal advice.

Agreed!

 

[wazzalox]

In my will I have specifically mentioned that my son should get nothing. I also set out the reasons why. So, hopefully I'll get an intelligent judge if there's a dispute. Mind you he would then have to pay the $50,000 he still owes me.

 

[Pidgy Jo]

Estranged Children and Contesting Wills: Have Your Say​

It's Sunday which means it's time to have your say!

Today's question was thoughtfully sent in by a member. They've provided this insight to read before the question itself.

'We are encouraged to make a will. The will is supposed to be our intention regarding who receives the proceeds of our Estate, however, did you know that your will and therefore your intention regarding the proceeds of your Estate can be challenged? The challenge can come from your children, even those adults who may have been estranged from you for many years. Also, did you know that the legal challenge can be paid for by your Estate? How do you feel about the possibility of your intentions being disregarded? How would you feel about the money from your Estate being used for this purpose?

So considering this, our question is...
In Australia, children (estranged included) written out of a will can challenge this with the estate. Do you feel this legal loophole is disrespectful to the will writer's wishes and should be corrected?

We strongly encourage comments this week, members, as there is so much to discuss!

We can't wait to hear from you!

 

[Dunks]

When you do write your Will, they are your wishes. Why can anyone contest or disagree with the written word. I know it’s simplistic and usually doesn’t occur, but the only winners are the lawyers. I was an Executor for a friend and the people that came out of the woodwork was amazing. Thankfully he had stated quite emphatically that these people were not to be involved in his final decision.

 

[terri]

I am in the situation where two of my children have not been included in my will. The clause has been legally worded such to show that they are not a pat of my life and have no claim on my estate. I won’t go into the personal aspects of my will but suffice it to say that from a young age one child made a choice to disrespect me immensely, and do many things to hurt me, some of them illegal, and it was a conscious decision to leave him out. The second child decided she no longer wanted me in her life and I was banned from my grandchildren after being prominent in their lives for the first 5 years of the eldest child’s life (and 3 and 1 for the younger). I have two other children who I am very close with, I have spent many happy times with them and their families and we operate as a family. I believe as my other two children have not contributed to my life or the family life in any way for many years and despite attempts on my part to reconcile have been hurtful in their responses, it is my choice to leave whatever I do to the children who have shared their lives with me and who help me out when I need anything or just be there when I need family. I do not act from spite, I simply don’t see them as part of my life any more and therefore not a family member. I feel what I have to leave is to help my loved family members and my eldest two have chosen not to be included in that family. I find it terrible how the death of one can cause people to come out of the woodwork causing grief to loved ones when in the life of the deceased they have been content to remain outside the family.

I dont find myself in this situation, but this is exactly why there needs to be some discusson when a will is contested. If a child just puts a hand up to gain from the death of a parent whom they have not had any dealings with then that is disrespectful. Leaving anything to family is not about how much you did for that person but how you felt and understood them. And sometimes it can be a lot of money and then the real fight begins.

 

[maggiej]

We have just rewritten our wills and have left all our estate to our children. It will be up to them whether they share the proceeds with their children. We are not rich but there will be our home to be sold so they will an equal share

 

[Suzanne rose]

I think it is disrespect to contest a will.

Why is it automatically a child's right to inherit their parents money and property.

I have 13 kids and haven't written a will as yet but we will do it soon.

I have two children who are very disrespectful , my eldest daughter whom we have given money to , yet she won't listen to us and continues living in poverty with her 3 children.
One of my sons who is 28 and very disrespectful to the whole family. He is selfish and self -centred , and now he is married to his equal no one in our family sees him.
I will leave them a small ammount off money but I will do it legally so it can't be contested .

I feel the only way a will should be able to be contested and that is if a child needs continue support eg parent has been looking after a child with disabilities and were not provided for in the will

 

[Tripper]

Seek legal advice from a solicitor qualifies in estates and wills if you are not leaving a very straight forward one. There are many things that can trip up the smooth transfer of assets. Of course that means people with zero interest get their hands on your $$$'s. Also think very very carefully about enduring guardianship and executors. Also talk to those involved so it is clear what you want and why. Every aspect of death is not handled well in our society.

 

[BarbieAmor]

Yes it is disrespectful and wrong. You earnt your savings and it is yours to do with as you want. Why bother paying all that money to make a will to have your decision changed. If you want to reward someone who has been there for you, sharing your life with good memories, you should be able to reward them. If you want to punish someone who has caused you stress and pain then you can leave them less or leave them nothing.

 

[VickieCheryl]

I have one written out of mine but it is worded legally that she has not been part of our lives since she was 16 there are reasons for this

 

[Jenny07]

I’m in this situation at the moment with my son whom I’m estranged from. I’ve actually changed my will twice as my lawyers don’t believe in codicil’s and costs $600 each time to change the will. Now his son has done exactly the same and is in my will; my dilemma is do I go get a ‘free’ Will from the post office and just write the grandson out of my will stipulating why or do I go back to my lawyer and pay the exorbitant fees just to write him out? I have a great daughter and her family I’m close to and a granddaughter and her daughter’s so they are in my will and always will remain in my will for the love and care that they have given me over the years. So it’s food for thought when you make your will sad as it is but we have to be honest and strong.

 

[Pidgy Jo]

I am currently the executor of a Will where the children of whom the deceased had had no contact with for over 40 yrs
They are both bad criminals and drug addicts
In Queensland you only have nine months after the person has died to contest the Will so these guys didn’t get a chance to go the estate because they didn’t know my friend had died and I had distributed most of the assets by this time however it is a different story with the super
The superannuation that my friend used are by there own law compelled to contact any dependents even though they are not in the Will
I didn’t contact the super until after the 9 months as I had been near death door myself
My friends will stated that under no circumstances were they to receive any of the estate and a binding nomination had been done with the super leaving it to friends and siblings
The nomination didn’t stand as it was left to friends and siblings as apposed to dependants or a spouse
The super overturned my friends wishes and ruled that these adult children be given a large portion of a large super fund
From that point as executor I contested this and 12 months later am still waiting for a response from Australian Financial Complaints
So if you are taking your children out of your will have a good look at the rules of your super fund
I am truly disgusted by this outcome as I know if my friend who tried to make sure the adult children weren’t included by ticking all the boxes could have taken the super out before death and it would have then been included in the estate

 

[Dbourky]

I think it is solely up to each parent to make that choice. My mum had a problem with my brother he owed her quite a significant amount of money that he did not pay back so she only left him a amount that added up to what I had been given and his reply to me when my mother passed I was not expecting any as I owed her a large amount and he was happy because he was not expecting any thing.

 

[Pidgy Jo]

I’m in this situation at the moment with my son whom I’m estranged from. I’ve actually changed my will twice as my lawyers don’t believe in codicil’s and costs $600 each time to change the will. Now his son has done exactly the same and is in my will; my dilemma is do I go get a ‘free’ Will from the post office and just write the grandson out of my will stipulating why or do I go back to my lawyer and pay the exorbitant fees just to write him out? I have a great daughter and her family I’m close to and a granddaughter and her daughter’s so they are in my will and always will remain in my will for the love and care that they have given me over the years. So it’s food for thought when you make your will sad as it is but we have to be honest and strong.

You can do a free Will with the public trustee don’t use post office wills they are easily overturned

 

[Rain72]

Gifting a small amount to a child does NOT stop them contesting the Will (as claimed above).

The fact that they can contest is not the problem. The problem is the manner in which a contest is decided. It should NOT be decided (as it is now) based on claimed ''needs''. Needs are often created by bad life choices. Why should children who made responsible choices, worked hard, and cared for their parent in times of need, suffer discrimination because an irresponsible and negligent child wants more?

I know of cases where a child robbed her mother and hid assets but was favoured by the courts after putting siblings through hell. Another where a drug addict who had ignored her father for decades was favoured over the responsible brother who spent tens of thousands caring for his disabled father for years.

Also, it is wrong that the Executor or beneficiary has to spend countless thousands to defend their rights while the challenger can access ''no win no pay'' arrangements and pays no penalty for mounting a baseless claim.
Often, there are special considerations that are, sadly, ignored by courts or hard to evidence. I spent hundreds of hours and worked very hard, late in my mother's life, to access entitlements from my father's superannuation that she had been wrongly denied, so that she could have comfort in her last years. My half-sister inherited a huge sum from her father, which she insisted was exclusively hers because it was from her father's estate. But she wanted half the money from my father's superannuation as well. And because she helped herself to the money from her father before Mum died (depriving our mother of money that was rightly hers), that money was not considered part of the estate, but my father's superannuation was because it rightfully went to my mother while she still lived. So I lost half of what my father left while my sister got 100% of what her father left, despite having deprived our mother cruelly and left her in need. Mum's will was fair, but the courts overruled it because their method of determining a dispute is unfair.