Brisbane’s Legal Lowdown: Can you disinherit someone who’s estranged?

Sofie: It is time for this week’s Brisbane Legal Lowdown with Attwood Marshall Lawyers.

Now every family has its challenges. I don’t need to tell you. Sometimes relationships will break down. Sometimes it happens to the point where people become estranged. It often can lead to parents leaving their children out of a will or potentially threatening to. And this idea of disinheritance, whether it be a child or any other family member, can be one of the most controversial decisions that people will make when they’re planning their estate.

Now, I know this might seem like a bit of a downer, but it’s an important conversation to have. So today we’re being joined by Attwood Marshall Lawyers’ Estate Litigation Senior Associate, once again, Duncan MacDougall. Welcome back to Afternoons.

Duncan: Thanks for having me again.

Sofie: We have to talk about the so-called black sheep of the family and why someone might be excluded from an inheritance and then what legal risks could come with making that choice.

Duncan: Yeah, it always seems to be the case. There’s always that one black sheep in the family that causes issues down the track. But yes, it’s definitely a balancing act and it’s a balancing act that a lot of people are going to have to start considering, especially if they are excluding some eligible people who can make claims against their estate.

Sofie: That’s where the lawyer bit comes in because are you finding this happening more often in practice?

Duncan: Very much so, and especially with blended families as well. When you’ve got somebody who’s the outlier, so to speak, who’s come in and then all of a sudden caused some issues, but then also some family just fall out, some siblings fall out and whatever reason it may be, they go on with their own lives and then try to get a piece of the pie later on.

Sofie: Yeah, when they haven’t spoken to their, you know, the person who has passed in decades. But I still want a piece of the action.

And so this whole idea then around estrangement, we know that there are, as you said, many families who find themselves in this situation. What do you do if you’re the one writing your will and you want to make sure that it is iron clad, that there is not the ability for that child or family member to make a claim when they’re not written into the will. So you’ve deliberately said no, but then they want to make a claim. Because you’ve said to us in the past, it doesn’t matter what’s in the will, there is still the opportunity to try and make a claim.

Duncan: Yeah. So it’s just important to remember who can make a claim against your estate. In Queensland that will include spouses, children, including stepchildren, adopted children, independents on the deceased.

Now, when you’re in that estate planning process, it’s important to be aware of, I mean, at the end of the day, it’s your will. You can decide what you want to do and if you want to exclude that person, so be it. But you have got to be aware of the consequences by doing so and the financial risk to your estate by doing so. Because again, those people can put up their hand and say, hey, listen, I’ve been excluded.

Now it’s one thing for them to be eligible to apply, but that’s not guaranteed that they will be getting further provision. There’s a multitude of different factors that go into it including the size of the estate, the relationship with the deceased, whether they can actually demonstrate further need for provision, all their financial circumstances or personal circumstances, their medical history all come into play.

So, to avoid that, to go back to your question about making it ironclad, that’s the conversations you’re going to have with your solicitor to make sure that you look at your assets to say well, can I restructure things in certain ways, do I have binding nominations under my super to avoid it falling into my estate, which then could make it be eligible for a claim. Can I throw some assets into a trust? A multitude of different things there.

Additionally, with that you might have said reasons why you’re excluding them. You know. Most of those informal sorts of things would be outside of a will, but you can include them in what’s called a statutory declaration or letter of wishes to your executor to kind of set the scene, it was my intention at the time and put them into the mind of the deceased at the time of them preparing their will. This is the reasons why.

Sofie: So then in, you know if there’s an example that you can give us where that hasn’t happened and somebody who was estranged did make a claim and was successful?

Duncan: It happens all the time. And whether that be a stepchild that comes out of the woodworks, or friends, even a biological child where there was some big family disagreement, they’ve moved off, the one that comes to mind, they’ve moved off the farm, they didn’t assist with the running of the farm. They’ve come out and they’ve come back and then again wanting another piece of the pie.

Now in those situations, in the one that comes to mind, it’s a small estate. The estate was really only worth the value of the property, which was quite nominal at that point. And they had already dealt with a lot of division of assets prior to their passing as well to the ones who they wanted to. So, there were mechanisms that they did take, in particular in that one to avoid them being successful in this case. I mean they did end up with a settlement, but it’s not the bigger piece of the pie that that they probably would have been expecting.

Sofie: And so was there a negotiation then of, we’ll give you something to go away, but you’re not going to get as much as you thought you might.

Duncan: Yeah. A lot of people assume that you go right before court. Right before a judge to make those determinations. But no, there’s an alternate dispute resolution process that people have to go through and that will include negotiations, a bit of a ping pong game back and forth to say, hey, listen I offer you this, the estate says, well, actually we offer this, and you come to a middle ground.

Sofie: So how do Queensland courts generally handle that sort of family provision claim that’s made by an estranged child or family member who might be seeking to inherit something?

Duncan: Estrangement is certainly a factor that comes into it, but it’s not a bar from them making a claim. So, I say, hey, listen, well, when I take instructions, for example, preparing a will, they may be adamant saying well, I’m going to exclude them, etcetera, etcetera. But it’s my job to explain to them, hey, listen there’s still that risk that they can come, and make a claim for any provision, even if they are included in the will to some degree, they could still be asking for further provision.

Sofie: Okay. What about a complicating factor of, particularly if there’s been a long-term estrangement. Then they will is enacted and the estate is divided and then the estranged child or family member finds out that the passing has happened and then they try to make a claim. Can they do it after the estate has actually already gone through the wishes of the will?

Duncan: There are certain time limits that they have there. In Queensland, you’ve got six months from the date of death to actually notify the executor of the estate that you’re intending to claim. And then you’ve got nine months from the date of death to actually file proceedings. So, any time out of that time they’ve got to have serious grounds where if they can make an application out of time, but you need leave from the court in order for that to take place.

Sofie: But it’s not years?

Duncan: No.

Sofie: What if the estrangement was a result of bad behaviour? Look, what if there was situations where it may have even have been a case where there was some sort of abuse or domestic violence that was involved. Does a history of poor behaviour weaken someone’s claim against the estate?

Duncan: Certainly, it’s definitely an element to it, but again, it’s not a bar from them making the claim, it’s all going to turn on the facts of the particular case. And it’s really them disclosing in terms of that negotiation process, it may get to a point where proceedings are actually filed in which case they have to prepare an actual affidavit affirming how the relationship, and what their personal circumstances are.

Sofie: So finally, then for the listeners this afternoon, whether it’s for them or for somebody they know, what is your advice to someone who could be worried about their will being challenged by someone that they know that they have fallen out with overtime or that has one of those extended connections to them, whether it be one of their biological children, step children, former spouse, they’ve had a falling out with them, they’re no longer in their lives and they might only be hearing now for the first time that that person could potentially have a claim over their estate after they pass?

Duncan: So most times when we see that happen, sometimes it’s the case that they’ve gone ahead and done their own wills, a DIY will kit, not fully understanding those risks to their estate. So, it’s very important to get that legal advice. Go to your solicitor. Have a conversation about who’s in the family, who could potentially come out of the woodworks to really cause a situation for your estate.

Sofie: Couple of quick things that have come in from listeners for practicality. Sam wants to know if you’re able to look at a will that’s already been drafted by another law firm to see if there is some holes or if it would hold up, or does it potentially need to be completely redone?

Duncan: Certainly. Happy to do that.

Sofie: Matt says can his ex-wife, who has kept the family name, access his parents estate even though they’ve officially divorce last year?

Duncan: So, officially divorced then, no she does not have a claim. So that’s a very important aspect, is that even if you have separated, the first thing you should be doing is considering going to get your estate planning done, because even if you’ve been separated for an extended amount of time, provided you’re still married, they’re still eligible.

Sofie: But the divorce being official makes it a different situation?

Duncan: Correct.

Sofie: And we think I answered this, with David asking is there a time period after which you can’t contest a will?

Duncan: Yes. And that’s that nine-month period. But again, it’s going to turn on the circumstances.

Sofie: I think we got a fair bit out this afternoon, Duncan and I will remind everybody, of course, if you want to reach out to Attwood Marshall directly, they’ll always be happy to answer your questions and look after you.

Thank you so much once again for your time.

Duncan: Thanks for having me.

Sofie: That’s Duncan MacDougall, Attwood Marshall Lawyers’ Estate Litigation Senior Associate. It’s just the reality of life, isn’t it, that we have to have these conversations.