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Can you disinherit an estranged child?

Can You Disinherit An Estranged Child?

Are you entitled to disinherit a child who chooses to have no contact with you?

It is an emotive issue, and one that many people have strong views about (on both sides of the matter). The question of whether you can disinherit a child is not an easy one – and it’s an issue the courts deal with on a reasonably frequent basis.

The starting point is that, in Australia, we have testamentary freedom – we are able to leave our estates to whomever we like (this is in contrast to some other countries, where there is a system of forced inheritance – for example a certain portion of the estate must be left to the spouse and/or children).  However, the testamentary freedom we have is constrained by legislation enabling certain persons to make a “family provision” claim against the estate. There are a range of persons eligible to make a family provision claim, and as you may expect, a child of the deceased is an eligible person. A person can make a family provision claim seeking that provision (or further provision) be made for them in circumstances where they have not been adequately provided for.

There are many factors taken into account when a family provision claim is made but some of the major factors are the financial circumstances and needs of the claimant, and the character and conduct of the claimant.

The courts have considered numerous cases where a child makes a claim for provision, in circumstances where they have not had contact with their parents for many years. It is difficult to generalise about these cases, because every family is different, and these differences (even if seemingly subtle) can result in differing decisions being made. There is certainly no general principle that a parent can disinherit a child because of a period of estrangement, however long.

The issue of estrangement was considered by the NSW Court of Appeal in the case of Burke v Burke [2015] NSWCA 195.  The deceased excluded her son from her estate, which was worth over $1million. The son had no direct contact with his mother for 20 years prior to her death and the Court found there was no rational cause for the son cutting himself off from his family. There was no doubt he was in financial need. However, the Court found that his mother was entitled to regard him as a person undeserving of any benefit from her estate. In contrast to this was the decision of the NSW Court of Appeal a few years earlier in Andrew v Andrew [2012] NSWCA 308. In that case the deceased left the majority of her estate to 4 of her 5 children, and left a relatively small amount of $10,000 to her daughter. The daughter had no contact with her mother for about 35 years, apart from 2 family occasions (a wedding and a funeral). There was no apparent reason for the break in the relationship. The Court decided to award the daughter an additional $50,000 from the estate, saying “Although the mother’s reaction was entirely understandable and might have been shared by many parents, I am not persuaded that it justified the reduction of the daughter’s share in the estate from that which might otherwise have been expected to a largely nominal sum.”

It is sometimes a difficult decision for a parent to leave a child out of their will. In addition to grappling with the decision to exclude a child, another consideration is the financial and emotional impact of a potential court case on the beneficiaries. It is always important to seek specialist legal advice regarding a potential family provision claim on an estate, and to carefully consider that advice.

For advice regarding your will and estate please do not hesitate to contact our  Wills and Estates Law Team, on 02 4929-3995.

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