How to Disinherit a Child in a Will in Australia

How do you disinherit a child in a will? The answer, like many relationship questions in life, is, “It’s complicated.”

Disinheriting a child in a will in Australia is possible, but not necessarily straightforward. Australian law gives its citizens the freedom to draw up a will that nominates who their estate will be distributed to upon their death, but are their children necessarily included?

There are some rules around what you can and can’t do, but in general, most children are given inheritance from their parents, unless the parent explicitly excludes them as a beneficiary.

A judge can decide to override this decision by the will-maker though if he sees fit.

In such cases, the onus lies on the child making a claim to prove to the court that they are entitled. If, for example, there had been a long estrangement between the parent and child, and the child ‘t can’t prove they made a significant and genuine attempt to reconcile with their parent before their death, the judge may decide they don’t have an entitlement under the estate.

Adult children can contest the will if they feel they’ve been unfairly left out by their deceased parent. If the matter can’t be settled through mediation with the will’s executor, then it will be up to the court to decide if they have a fair claim or not. The court will decide based on a number of criteria, including:

  • The current financial situation of the child
  • The length of estrangement between the parent and child
  • The reason for estrangement and whether the child made a reasonable and genuine attempt at reconciliation
  • The size of the deceased’s estate, etc.

If a Child is Left Out of a Will, Can They Contest It?

In Australia, there is little you can do to stop someone from disputing your will, and adult children, particularly those who are in bad financial shape usually have some legal claim to the assets in your estate.

If for some reason, you are adamant you do not want a child or children receiving part of your estate, there are certain steps you can take before death to make it difficult for them when contesting your will.

Each state and territory has different laws surrounding this issue, though, with NSW having strict rules around time frames in regards to the transfer of property.

Things you might consider when disinheriting a child include:

  • Obtaining proper legal advice when drafting your will. Often making a reasonable provision for the child you wish to disinherit, while perhaps not your preference, can stop them from being able to claim for further provision from the estate
  • Structure your assets so that they are not part of your estate. This might include having joint bank accounts and property titles, so that when you die the assets transfer to the other holder, rather than becoming a part of the estate
  • Transferring all or some or all of your assets while you are still alive. This can be a particularly risky thing to do while you are still alive with complex financial implications. Talk to your lawyer and accountant about this may affect your current situation
How to Disinherit a Child in a Will in Australia

Cases of Estrangement

Cases, where adult children make a claim on the estate of a parent from who they have been estranged, can be particularly challenging for a court to rule on.

The assessment of the court will be made based on several relevant points, such as:

The nature of the estrangement and the underlying reason for it

The financial needs of a plaintiff, the size and nature of the estate and the existence or absence of other claims

How the claimant treated the deceased before death. The deceased is not bound to provide for a child, particularly one ‘who treats their parents callously, by withholding, without proper justification, their support and love from them in their declining years. Even more so where that callousness is compounded by hostility’.

In cases of a family provision claim where there has been estrangement, the court will look at:

  • If and how the applicant contributed to the estate or welfare of the deceased; and
  • The character and conduct of the applicant before and after the deceased’s death

In the case of Hampson v Hampson how these elements are assessed was summarised by Hallen AsJ:

‘The requirement to have regard to the totality of the relationship can in many cases, be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the details of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge.’