The information provided below is general in nature and should not be relied upon legal advice. You should call 03 5445 1000 and speak to a lawyer at OFRM about your particular circumstances.

Love them or leave them (out of your will)

If you haven’t spoken to your child for a long time do you cut them out of the Will or tell them that you still care?

It is a sad fact of life that relationships between a parent and child are not always smooth and harmonious. Sometimes these difficulties can arise from genuinely difficult and irreconcilable situations.

More often the reasons for the breakdown in the relationship are obvious, but the difference is capable of being repaired.

Do you exclude the child from your Will?

So, what should someone do with their Will if there has been a breakdown in the relationship with their child?

The starting point is that any person is entitled to make a Will and leave their assets as they wish.

There is a legal obligation to make adequate and proper provision for the maintenance and support of a child, but there can be justifiable grounds for excluding a child. This is a very complex area of law and there are literally hundreds of cases that could be digested. With this area of law being recently amended, there probably will be uncertainty about what is proper provision, until the Supreme Court has decided new cases under the new legislation.

Death brings with it the extinguishment of all hope of ever resuming the relationship with a child. What you say and do during your lifetime as well as what you say and do in your Will can have a profound impact on those people left behind.

Imagine the following two options:

  1. In your Will you make no provision for a particular child as you have not had contact with them for some time and the conversations that did occur were emotionally charged and unpleasant. Your Will makes the comment that your child has abandoned you and you are hurt in the extreme by their rejection. You state that you believe you have no obligation to make any provision for that child.

  2. Your Will states that while you have not had any contact with your child for some time you nevertheless love them dearly and deeply regret the period of silence between you. You further state that you only want the best for your child and that as they go forward into the future they carry the knowledge, that whatever arguments or harsh words that were exchanged, your still loved them as your child.

It doesn’t take much to imagine the two quite stark alternative situations that would arise. Reconciliation may, sadly, not occur during your lifetime but in your Will you have the ability to control what is really the final conversation between you and your child.

When it comes time to make your Will it is important to carefully think about this difficult relationship. Making you Will is an ideal time to “take stock” of your life and consider not only the legacy you want to leave but whether you want to make any changes in your relationship now.

Sadly, usually when dealing with fights over estates, I have seen far too many occasions when people have used their will as their way to “have the final word” or give a child “payback”.

I have also seen the opposite. Where people have reflected at the time of making their Will and used that time as an opportunity to patch up differences. Discussing these difficult issues with your lawyer at the time of making your Will can not only increase the likelihood that your Will will be something that is unlikely to be challenged but also provide an opportunity to think about a different way forward.

None of us like to face our own mortality, however using the time to make your Will as a time to think about this may be an invaluable step and bring great peace to you and your family.