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Want to write someone out of your Will? Beware: the “black sheep” of the family may still be entitled to claim on your estate!

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Not all families get along. Disagreements can and do happen which can cause lifelong rifts between siblings, parents, grandparents, and other relatives. Unfortunately, most parents are not aware that despite their child being estranged or being the “black sheep” of the family, they are still eligible to make a claim on their estate after they die. Attwood Marshall Lawyers Estate Litigation Senior Associate April Kennedy recently joined Robyn Hyland on Radio 4CRB to discuss the complex issues that can arise when parents wish to ‘disinherit’ an adult child.

Background

The “black sheep” scenario is extremely common for many Australian families. Family relationships can break down for any number of reasons, but most commonly this can be a result of an adult child, or even their parent, having an addiction issue.

Addiction and substance abuse in Australia is a significant problem. It has been reported that 1 in 20 Australians has an addiction or substance abuse problem. When someone has a substance abuse problem, it can put significant strain on any relationships they have.

It is often the case that someone with a substance abuse problem will no longer have a strong connection to their family, and there are parents who may choose not to provide for adult children in their Will because of a substance abuse issue. They do not want to give them access to money or assets that will only provide further means to support their addiction.

There are strategies you can use to protect assets from vulnerable beneficiaries, however, choosing to omit that child from your Will, or not planning appropriately to provide adequate provision for a child, will only leave an estate vulnerable to be contested by way of a ‘provision claim’.

In addition to fractured relationships caused by drug and alcohol addiction issues, it is also common to see parents and children fall out when a new partner or spouse enters the scene and causes a rift in the family, or in some circumstances, it may simply be a clash of personalities and inter-generational conflict that sees parent-child relationships break down. Whatever the reason, families are complicated!

There is a common misconception that you can leave your assets to whomever you wish, and if you choose to leave someone out of your Will, that you have every right to do so. Nothing could be further from the truth!

What most people fail to understand is that if you fail to make “adequate provision” to an ‘eligible person’ (which is usually a child), that person will have the right to make a claim on the estate for provision after their parent’s death. That includes the black sheep of the family!

An adult child having limited contact with or behaving poorly towards their parent/s (not including various forms of violence) does not exclude them from bringing a claim against their parent/s estate.

The circumstances of the relationship breakdown will be taken into consideration when a family provision application is being determined. Each case will be determined on its own facts and merit.

Why the black sheep of the family can be the “model family provision applicant”

In a lot of cases, the black sheep of the family can be the model family provision applicant. Without over generalising, the “black sheep” may be someone who has not done as well in life as their parent hoped, or perhaps they failed to succeed to the same degree as their siblings. Because of this, they may have significant financial need, albeit through their own choices in life.

Parents and those in the position of defending a family provision claim are often exasperated or bewildered that someone who has squandered away their own money, or made poor choices in their life, has the right to access their parents or grandparents’ assets simply because they managed their own finances so terribly.

This mindset is completely understandable; however, it goes so much deeper than that.

The categorisation of a person who is the “black sheep” can go back years or decades, and often leads back to childhood.

The black sheep of the family may have been someone who was a little bit different to their parents and siblings. For this reason, they may have been cast out or treated differently throughout their lives.

The Court delves into the family history when making its determination. They will look at the family history, the reason for any estrangement, and the reasons why this person has become the “black sheep”.

The Court will evaluate if it was a result of their own conduct, or if it may have been a result of their parent’s conduct. These types of matters are never straightforward.

Will an applicant’s claim be impacted if they have addiction issues?

Addiction and substance abuse issues can affect a person’s claim on an estate; however, these factors alone do not mean that person’s claim would be unsuccessful.

If the person’s claim was successful and they were suffering from an addiction issue or some other vulnerability, for example a mental health disorder, then the Court can make orders that will protect that person’s provision from the estate. Potentially, their inheritance may be put into a form of trust with rules as to how much that person receives and when, assigning a trustee to manage the trust on their behalf.

What constitutes “adequate provision”?

The Court evaluates many factors when determining whether adequate provision has been made for someone making a Family Provision Application.

The Court will look at:

  • The size of the deceased’s estate and whether it is sizeable enough to provide for the claim
  • The financial situation of the applicant and if they have financial need
  • The relationship between the applicant and the deceased
  • Estrangement – how long, what caused the estrangement, and who was the cause
  • Financial support being given to the applicant during their lifetime (for example, whether the deceased had provided them with a house deposit, car, or assisted with the payment of debts, etc.)
  • Whether the applicant engaged in any inappropriate conduct, such as alcoholism, abuse, or if they had a drug problem that may have been a factor as to why they were not left adequate provision in the Will
  • Other competing claims. The Court will also need to look at whether there are any other claims on the estate that must be considered at the same time, and the financial circumstances of the beneficiaries whom the deceased intended to leave their estate to.

Ultimately, determining what is adequate provision is relative to that person’s needs, how many other beneficiaries there are and what their needs may be, and the value of the overall estate.

It is a discretionary exercise. The Court will consider a number of different factors when determining the issue of adequate provision, and results will differ from case to case.

Who is eligible to make a Family Provision Application?

The definition of an eligible person is defined under each state or territory’s relevant legislation.

In Queensland, eligible persons are outlined in the Succession Act 1981 and include:

  • The deceased’s spouse
  • A child, including a stepchild or adopted child of the deceased
  • A parent of the deceased person who was being wholly or substantially maintained or supported by the deceased at the time of their death
  • The parent of a surviving child under the age of 18 years of the deceased person (e.g. a partner/or former partner who had a child with the deceased provided their child is under 18 years old)
  • Any person under the age of 18 years who was being wholly or substantially maintained or supported by the deceased at the time of their death.

In New South Wales, the category of persons who are eligible to make a Family Provision Application are broader, and include:

  • Spouse
  • Former spouse
  • Child
  • A grandchild or person who was a member of the deceased’s household at any time and wholly or partially dependent on the deceased.
  • A person in a close personal relationship with the deceased (e.g. carer or friend).

Elements of a family provision claim

If someone believes they should have been provided a share or greater share of someone’s estate, then they must demonstrate that the Will did not make adequate provision for them to meet their needs and advancement in life.

When someone believes that they are entitled to a share or greater share of an estate, the first step they should take is to seek advice from an experienced lawyer who practises specifically in estate litigation. A lawyer will look at the case and give the applicant an idea of their prospects of success.

If that person’s claim has prospects of success, then the lawyer will take steps to communicate with the executor or their solicitor to investigate and attempt to negotiate without the necessity to go to Court (this of course depends on the time limits and when the solicitor received their instructions).  

If those negotiations are unsuccessful, then the next step is for a lawyer to file a Court application seeking orders for provision or further provision and presenting evidence as to why the applicant should be entitled to more.

A solicitor will work with their client to gather supporting evidence for the claim, which will include taking detailed instructions about their personal and financial circumstances, taking instructions about their relationship with the deceased, gathering evidence about the applicant’s future needs, and any other relevant information that will support the family provision claim.

In many cases, all the parties may be able to negotiate early on and settle the matter without it going to Court.

However, it is not uncommon for these types of matters to proceed to Court as they can be highly complex and very emotionally charged, and for this reason sometimes parties simply do not want to negotiate between themselves and want to fight it all the way.

Time limits

There are scrupulous time limits that apply to Family Provision Applications. Therefore, applicants must act quickly. These time limits differ for each state and territory.

In Queensland, you must give formal notice to the executor or administrator of the estate regarding your intention to bring an application within six months of the date of death, and you must commence Court proceedings within nine months of the date of death.

In New South Wales, you must have filed a claim with the Court within 12 months of the date of death. However, you need to be aware that the estate executor is entitled to begin distributing the estate after six months of the death, making it more difficult to recover assets after this time.

It is essential to act quickly and be proactive – get advice early on!

Attwood Marshall Lawyers – a dedicated team of estate litigation lawyers who practice exclusively in this complex area of law

Attwood Marshall Lawyers have one of the largest and most experienced estate litigation teams, with senior lawyers who practice exclusively in this area. Our team have the state-specific knowledge to assist with estate litigation cases in Queensland, New South Wales, and Victoria.

Will disputes and Succession Law can be highly complex issues to navigate. When someone makes a family provision application, emotions are generally running high, and many family issues are bought to the surface. It is important to find the right lawyer who can guide you through this process, help you carry the burden, and reduce conflict as much as possible so that you can achieve your desired result and move on with your life.

To find out more about how we can help with an estate litigation matter, please contact Estate Litigation Department Manager Amanda Heather on free call 1800 621 071, direct line 07 5506 8245 or email aheather@attwoodmarshall.com.au 

Read more:

Estrangement: Are parents obliged to provide for an estranged child in their Will?

The Dangers of Online Wills – Buyer beware!

How to avoid someone Contesting your Will

 

 

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april kennedy estate litigation lawyer

April Kennedy

Special Counsel
Estate Litigation

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Disclaimer
The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice and is of a general nature only. Readers should seek legal advice about their specific circumstances. 

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