Leaving A Family Member Out Of Your Will – Will Disputes
” I don’t want to leave anything to that child!”
Jim is a widower, in his 70’s. He has 3 children, all of whom have their own children. He has 7 grandchildren in all, ranging between 16 and 8. His oldest child is Mark, who lives interstate, Louise lives about 15 minutes drive away, and Bob is just under an hour’s drive away.
Mark rings him regularly, and with his family visits Jim at least once a year, sometimes at Christmas or for Jim’s birthday. When he rings Jim the grandchildren usually say hello as well.
Louise ‘s youngest is still in primary school, and she works 4 days a week. Every week she goes over to pick up Jim and take him shopping, and sometimes takes him to watch her son play soccer. In school holidays her children will sometimes go and stay with Jim, who lives near the beach.
Jim has not seen Bob’s children for 2 years. Sometimes Bob sends him a birthday card, but has not rung Jim or seen him for about a year.Jim is no millionaire – he owns his villa unit , a bit of super and some money in the bank, and qualifies for an age pension. When he dies, he knows that what they might inherit will make a big difference to his children, but he is concerned about how fair it might be to treat them equally. Should Bob, who has little to do with him, get the same as Louise, a wonderful helper, or Mark, who despite distance still keeps in touch.
Like many of us, Jim has heard terrible stories about family feuds and wills. He wants to reward Mark and Louise for their support, but is worried about what Bob might be able to do if he was disappointed at not being treated equally. What can Jim do in this situation?
In New South Wales, an Act of Parliament called the Succession Act allows people in certain categories- including children- to seek to have a different outcome from that set out in a will .
To succeed in such a claim, the claimant needs to show that they are eligible to make a claim – the easy part! -and then to show that they deserved better. In simple terms, do they have a moral claim for more? However, a court will also look at the consideration, which the will-maker gave, any reasons for the terms of the will, and will usually work on the basis that it is someone’s right to leave their estate as they wish.
Graeme Heckenberg is a Wills and Estate Lawyer, whose expertise has spanned over 25 years of practice.
If you have a query in relation to Contesting or Disputing a Will, or if you have been left out of a Will, contact Graeme today for a consultation.