Protecting Your Will Distribution from an Estranged Family Member

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While we prefer to believe that families do not suffer breakdowns in relationships that would invoke a parent refusing to provide for a child or children in their will, this is not always the case. There are families who have relationship breakdowns that cannot be repaired and result in estrangement.

However, before you attempt to leave an estranged family member out of your Will beneficiaries, it is important to understand the proper way to make a wish such as this known to your solicitor and executor so that in the event the Will is challenged, it will stand firm and support your intentions. The most common way to make your intention known is through a Statutory Declaration. This declaration is a legal document that allows the Testator to provide information and a statement as to why the estranged child has been eliminated as a beneficiary. It is important to include detailed information about the state of the estranged relationship over the period of years including;

  • The last contact and/or communication between the estranged and the testator
  • The estranged person’s ability to financially care for themselves
  • The lack of reconciliation attempted between the estranged and the testator
  • The cause of the estrangement
  • The perpetrator of the estrangement
  • The lack of any shared financial resources that the estranged might be entitled to via the Will

Even if the testator takes all of these precautions, it is still possible for an estranged individual to make a claim against the deceased’s estate. It is important to remember that in New South Wales an estranged family member has twelve (12) months from the date of the death to make such a claim.  In order for an estranged person to make such a claim, they may have to act and request a copy of the Will be provided to them for their review. Upon request, the executor must provide this to the estranged family member.

If the estranged person is successful in seeking the Court’s assistance in reviewing their claim against the Will, the Court will look at the following circumstances to make their determination as to whether the estranged individual might be entitled to a part of the deceased’s estate. Some of the areas the Court will review include;

  • The relationship between the two parties and any ongoing obligations the deceased may have been engaged in on behalf of the estranged individual
  • The value of the deceased’s estate and the financial needs of the estranged
  • The mental, physical, and psychological health of the estranged might require current or future financial assistance
  • Any disabilities of the estranged individual
  • If the estranged individual is receiving assistance from any other individual or agency

If the Court finds that the deceased had any of these types of responsibilities toward the estranged child, the Court can determine that there is a need for the estate to provide “for the proper maintenance, education or advancement in life” of the estranged child. This means that the Court may find that the estate has to make a disbursement(s) to the needy child for one or more of the following financial needs;

  • To allow for the payment of a mortgage, household costs, and/or medical bills
  • To contribute to the financial stability of the retirement of the estranged
  • To assist in the costs of daily living needs
  • To provide support for the estranged’s minor children
  • To further the educational and/or training needs of the estranged child

As this is a very complicated area of law, it is important that the testator works with the proper professionals when attempting to disinherit an estranged family member. A solicitor that specializes in the area of Wills should be consulted prior to attempting to leave an estranged family member out of a Will distribution. This will allow for the testator’s wishes to have the greatest chance of being honored and carried out as they have expressed in their Will.

In the event that you find yourself in need of assistance, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.

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