Are there consequences to leaving my child out of my will?

Leaving a child out of your Will is something that should be very carefully considered.

Children (including adopted and step-children) are eligible persons to make a claim on your estate on the basis that your Will fails to make adequate provision for their proper maintenance and support. While the Court will consider the reasons for the breakdown of the relationship and your intentions, there are other factors to be considered and include (but is not limited to):

  • Obligations and responsibilities of the deceased person to the applicant (i.e. child);
  • The size and nature of the estate (i.e., assets of the deceased person)
  • Financial position of the applicant (earning capacity and future need)
  • Physical, mental and intellectual disabilities of the applicant
  • Financial position, physical, mental and intellectual disabilities of any other beneficiary (i.e., any other child or spouse)

While the relationship may be irretrievable, the reasons for the breakdown in the relationship is sometimes just one factor of many for the Court to consider.

It is helpful to consider the following points:

  • If your estranged child shares a good relationship with your other children who you have included in your Will, you can almost guarantee that by leaving that estranged child out it will irretrievably damage their relationship with their siblings.
  • If the relationship has been strained for approximately 5 – 10 years, there are often many years you have spent with that child that weren’t so bad. It is helpful to think of a Will as being a photo album. Leaving them some provision may not be ideal, but it is really acknowledging the good memories you do have together.
  • When a child is left with no provision, there is great scope for that child to seek something at the very least. By providing your child with reduced provision rather than none, you are lessening the risk of a claim being successful, and your hard-earned assets and money being used to pay expensive litigation costs.

No matter the situation, families with strained relationship are complex and the consequences can be painful for those left behind. We can provide you with different perspectives, alternatives and solutions to ensure your Will is drafted in accordance with your wishes, as well as reducing the risk of a claim being made on your Estate.

You can book an initial appointment with the Wills & Estates team online, or call 03 5445 1000.

Will & Powers of AttorneyOFRM LawyersO'Farrell Robertson McMahonchildren, child, wills, will, will kit, contested wills, tfm claim