ARE YOU THINKING OF LEAVING AN ADULT CHILD OUT OF YOUR WILL?
ARE YOU THINKING ABOUT LEAVING AN “UNDESERVING” ADULT CHILD OUT OF YOUR WILL ?
Think carefully. Seek advice. It may not work out and you may leave a lot of trouble and expense behind you.
Crawford v Munden [2020] NSWSC provides some guidance on how the court may deal with situations like this: when a parent has left an adult child nothing in their will because of a lengthy and bitter estrangement.
In Crawford an adult child made a claim for provision from his deceased mother’s estate. The mother and son, despite earlier good relations, had been estranged for some 16 years and the court determined that the origin and duration of the estrangement rested with the son. During the estrangement the mother had made several attempts to re-establish contact with him and her grandchildren. She had even sold her house on two separate occasions and moved to where they lived. All to no avail. The son re-buffed her at every turn. They re-connected shortly before her death when he was informed she had a terminal illness. (The details of this case are quite heart-breaking to read).
Despite all this, the son was successful at court in getting substantial provision from the estate. The court, though recognising his responsibility for the estrangement, still declared the son had a moral claim, as her child, to be “the natural object of his mother’s testamentary bounty” (in other words she should have left him something!)
The court described the estrangement as tragic and serious but not of a kind to extinguish his moral claim. It determined that a wise and just testator/will maker would have divided her estate equally between the son and a niece (who had provided devoted love and support to his mother).
The court determined that estrangement did, however, warrant a reduction in the amount of what would have been proper provision by about 25-30%.
What guidance does this case provide:
adult children, even though not necessarily poor, or in poor health, may still be seen by a court as being a natural object of a will maker’s bounty/estate
there is no rule that an adult child is not entitled to “ample” provision just because they have been estranged from their parent (though in some circumstances that may be the case)
in such provision claims, lawyers’ fees (in Crawford around $160,000) may eat up much of the estate: NOTE: this is about the sum the adult child got in the end
the executors of the estate are put under a great deal of stress
are your circumstances of a kind to extinguish your child’s moral claim?
If you are thinking about leaving a child out if a will you should probably seek advice from a solicitor regarding your best course of action. Flanagan Legal Newcastle (www.flanaganlegal.net.au) is ready willing and able to help.