A ADULT CHILD IS ALWAYS ELIGIBLE TO APPLY FOR MORE PROVISION

Sometimes parents decide that they are very unhappy with their adult child’s behaviour and will therefore leave them entirely out of their will, or instead, throw them a nominal sum. However, as Hallen J in Page v Hull-Moody stated: “ (although) the relationship between a parent and child changes when the child attains adulthood…a child does not cease to be a natural recipient of parental… support”: in other words, parents are often seen to have an moral obligation to make “sufficient" provision for their adult children in their wills.

 Failure to make such provision may lead to a challenge, and such challenges often disrupt family relationships more and are very expensive and eat up much of the estate. Average legal costs for challenges are currently around the $80,000-100,000 mark for each party.

In Crawford v Munden [2020] NSWSC a mother left her son entirely out of her will. The court found that to have left him nothing was not to have recognise his moral claim on her estate, even when his major responsibility for the estrangement was taken into account. The court found that provision in the sum of $150,000 (out of a possible around $450,000 left after legal costs) ought to be made for him.

 In Smith v Smith [2016] NSWSC the father left two of his (estranged) children nominal sums of $30,000 each and another child the residue of a not inconsiderable estate. The court found that although the father did not have a legal obligation to provide for his adult children, nor did he have any obligation to treat his three children equally he should have provided them with a modest rather than a nominal sum (around $90-100,000 each).

 Willmakers do have the freedom to decide who will inherit their property but they need to be aware that if they provide insufficiently for eligible people, then courts have the discretion to interfere with their wishes. Willmakers who are considering leaving children out of their wills, or instead just providing them with a nominal sum, should take advice from a solicitor. They may need to make compromises to avoid a legal challenge.