Our advice is often sought by parents seeking to exclude natural or step children, from their will.
This may be the result of conflict in the family which results in the parents and child/children not having contact for a very long time, step-children who have never engaged with their step mother or step father or due to offending or violent conduct by the child toward the parents. Another common issue is a child who has received many or large loans from the parents and has refused to repay the parents. The parent, when excluding children or stepchildren is advised to include a statement in the will as to why the person making the will has left them out.
However, this does not prohibit the excluded spouse, child or step-child from making a claim against the estate. This claim is a provision in the Succession Act 1981 (Qld), which provides that a dependant may make a claim if they are in need of better or further provision from the Will (this may include a defacto spouse or an adult child/step-child).
There is significant case law around this issue, and the claim will need to be dealt with by the executor. The claimant will have to show that they have a real need, by way of financial hardship or illness or physical or emotional disability which requires financial support which the claimant is unable to provide from their own means.
It is important to seek estate planning advice from a solicitor before making your will to ensure that you are aware of the impact a claim of this nature may have on your estate and the other beneficiaries of your Will. There are some options which may be available to you to minimise the effects of such a claim, by better planning the ownership of your assets and what happens to them after you die. Seek legal advice before you take this step in making your will.
For more information, get in touch with BigLaw Solicitors on (07) 3482 6900 or email us at email@example.com.