Do Parents Have Obligations to Adult Children?
While most people would agree that a will-maker should provide for their surviving spouse and dependent children, opinions seem to be divided as to whether there should be provision for adult children.
For some, the irrevocable bond between parent and child seems to dictate that a parent should provide for the child after death, while others believe that adult children should make their own way in the world without expecting an inheritance.
Disinheriting a Child
While most people can’t imagine wanting to disinherit a child in their will, there are cases where people feel this is the best course of action for them to take.
Strategies for minimising the likelihood that a child or other interested person may contest your will include:
Making adequate provision for anyone likely to have a claim in the estate. While this may seem counter-intuitive, adult children, particularly those who have been financially dependent upon you or are in a weak financial position, may be deemed to have a claim to your estate, regardless of who you have listed as beneficiaries.
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.’
Where there a Will, There’s a Way… to Court
Recent statistics show that since 2005, the number of will disputes reaching the Supreme Court in NSW has gone up 60%, with increasingly blended families, entitled grandchildren and growing estate values all paving the way to court.
In a recent Law Society of NSW seminar, wills and estates spokesman Darryl Browne echoed this sentiment, stating that
‘There has been an enormous increase in the size of estates over the past 10 years. (While) it was rare to have an estate of more than $1 million 10 years ago, [} now it’s common due to the value of property and superannuation. People save unwittingly sometimes. There’s more in the kitty, so there is more reason for people to pursue claims if they feel they have been slighted.”
Unfortunately, such cases can result in families being torn apart by the proceedings.
When matters fail to settle in mediation and progress to court, the damage to relationships between family members can be irrevocable
with the recent case of Jagoe v Maguire seeing one beneficiary ‘suffering mental illness attributed to inter-family conflict and the siblings arguing’.
Such a case of a family being ripped asunder was also seen recently when 46-year-old Robert Wilcox made a $1.1 million claim on his grandfather’s $5.5 million rural estates, which had been left to solely to the deceased’s daughter, his mother.