A testator disinherits someone when they make a Will that leaves no provision for a person who was a beneficiary under a previous Will, or who would be eligible to inherit if there was no Will. A child of the deceased would normally fall into either or both of these categories. So, the disinheritance would intend to deprive the child of the right to inherit from the deceased estate.
Reasons for disinheriting a child
Sometimes a testator has good reason to disinherit their child and ultimately feels they no longer have an obligation to provide for them. This could be for a myriad of reasons – perhaps a rift has been caused by a conflict or disagreement over the adult child’s lifestyle, choices, religion or other deep-rooted family issues. These sometimes irreconcilable differences can result in the complete absence of the parent and child from each other’s lives, leaving the parent to feel that any legacies are not warranted in the context of the relationship.
On a more positive note, a testator might cite fairer reasons for disinheriting a child. It might instead be that a parent has already provided substantial help and assistance to one child along the course of their life (like an early inheritance) and decided that their remaining assets are best directed elsewhere.
Below is an excerpt from the Will of a testator who attempted to leave the whole of his estate to his carer who had been living with him for numerous years, making no provisions for his two daughters. His Will stated:
“I declare that I have carefully considered but not provided for my children A. H. or C. P. as they have never reciprocated any attempts by me to develop a relationship between us leaving the necessary caring work to my executor since I have been frail. In addition my children have not made any attempt for me to see my grandchildren. Although my relationship with Christine is closer, having regard to her overseas domicile, I am informed by her that she is quite comfortable financially and does not require or want any provision made for her.”
While this is a fine example of the wording that could be used to exclude someone from a Will, the judge in this case stated that the testator “had a responsibility to the plaintiffs, to make provision as would provide a reasonable measure of protection to the plaintiffs against their vulnerability to the vicissitudes of life”.
Can you disinherit your child in Australia?
It is generally recognised that most children are given (or at least expect!) an inheritance from their parents. Unless, of course, the parent exercises their freedom to add or remove Will beneficiaries at any time, and decides to explicitly exclude their child as a beneficiary.
This doesn’t however guarantee that a judge won’t overrule the Will-maker’s wishes in favour of the disinherited party (as in the example above) if they are found to have been left out unfairly.
The onus is nonetheless on the child to contest the Will if they feel their disinheritance lacks legitimacy and to prove the basis for their entitlement to part of the deceased estate. If the matter can’t be settled through mediation with a Will’s executor, that’s when it’s up to the court to decide if there is a fair claim. The court will take into consideration:
- The current financial situation of the child
- The length of any estrangement between the parent and the child
- The reason for estrangement and whether the child made a reasonable and genuine attempt at reconciliation
- The size of the deceased estate
- What a reasonable testator would have done in the same instance – if a reasonable testator would have disinherited the person, then the court will not interfere with the provisions of the Will.
All of this basically means that it is possible, on paper, to disinherit your child simply by excluding them from your Will, but not necessarily in practice.
How to disinherit a child or an heir
You may simply choose to state in your Will:
“I specifically, intentionally and with full knowledge fail to provide for [insert name] in this Will.” Or even more simply, “I will not provide for my son, [insert name].” And while there may be validity for the reasons behind these choices, they are essentially expressions of wishes that may not hold up in the future when you pass, especially if your Will is being disputed.
This mode of disinheritance relies on the absence of any contests, evidence or legislative factors which may undermine your decisions. However, there are certain steps you might take before death to make it more difficult for a disinherited child contesting your Will.
Alternatives you might consider if you wish to disinherit a child or heir include:
Obtain personalised legal advice
Obtaining proper advice from a qualified team when writing your Will – making a reasonable provision for the child you wish to disinherit, while perhaps counter-intuitive, can be a strategy to deter them from contesting your Will or prevent them claiming for further provision from the estate.
Structure your assets
Structuring your assets so that they do not form part of your estate before you pass away – this might include having joint bank accounts and property titles, so that when you’re gone, the assets transfer to the other holder, rather than becoming a part of the estate.
Record your reasons
Recording your reasons – not briefly in the Will but in detail in a separate written statement (perhaps even sworn), like a letter of wishes, that could give the court a chance to understand your thoughts and feelings.
Leaving a child out of a Will can be complex, and it is never truly guaranteed. Making your intention clear in this way though is undoubtedly the ultimate severance of a relationship and can likely never be undone. That’s why it’s important to be aware of legislation which may impact upon your course of action in preparing your Will.
Disclaimer: The content of this blog is intended to provide a general guide to the subject matter. This blog should not be relied upon as legal, financial, accounting or tax advice.