While we all like to believe that parent/child relationships are ones in which the bonds cannot be damaged or broken, the reality can be quite different. In many families, particularly after cantankerous family court issues, such as divorce, parents often find themselves in poor standing, or even estranged, from one or more of their children. And, depending upon the severity of the emotional harm, it is possible for a parent to want to choose to disinherit one or more of their children.
At first glance, it might seem as if this is entirely up to the parent in question. However, the court does not necessarily follow this logic. Instead, there are several factors the court will take into consideration when a disinherited child makes a claim against a deceased parent’s estate plan.
The Succession Act 2006 (NSW) allows for a child who has been disinherited to make a claim against a deceased parent’s estate. The initial three areas the Court will investigate have to do with the child’s needs, including maintenance, education or advancement if the circumstances warrant. The Court will review the information they can gather via the family and the disinherited child and use the information to determine the following:
What was the nature of the relationship between the parent and the child?
- This takes into consideration the frequency with which the parent and child had contact with each other
- The nature of the contact each other
- The time period of no contact with each other, if applicable
What was the financial obligation of the parent to the child?
- The court will consider if the child was still a minor, a university student or a working self-supporting adult.
- The court will also review if the parent was making any other types of financial contributions to the child or adult child at the time of death and whether this type of loss of aid would cause the disinherited child financial hardship.
What was the character of the child and/or parent before and after the death?
- The court will review if the parent and child were truly estranged.
- Or, if one party or the other was continuing to attempt to make reasonable contact with the other in furtherance of an ongoing relationship.
The Court will also look to prior case law determinations. However, it is important to note that these determinations are often made on subjective information. Family relationships and the facts surrounding them are very different for each family situation. As such, the court can often appear to be inconsistent when making a determination regarding a disinherited child’s claim against a deceased parent’s estate. Yet, there are some relatively standard issues the Court will review when making a final determination about redistributing the deceased’s estate. These include:
Moral duty is a concept which the Court believes to be inherent in the parent-child relationship. Simply put this is a duty that is implied to all parents regarding their obligation to care for the basic needs of their child. These needs will include shelter, clothing, food, education and basic living necessities that are needed for a child to function successfully in the community.
Financial need is less subjective than moral duty. The Court can look to the past support provisions the parent was responsible for and the current financial conditions of all of the children involved. In the instance that a parent leaves all of their financial assets to a child who is financially secure and nothing to a child who is a minor or struggling financially, tthe court will be more likely to redistribute the deceased parent’s assets.
If a parent feels strongly enough about disinheriting a child or an adult child, it is best they consult with one of Owen Hodge Lawyers Estate Planning solicitors. While this might seem excessive, it is important to involve both specialties as the areas of law will cross over one another under these circumstances. It is highly likely that we will be able to provide the parent with the proper language and explanations that will make their decision more likely to stand up in Court.