Excluding a child from your Will
As an estate planning lawyer, I am encountering an increase in matters where parents want to exclude a child from their will. This decision often reflects estrangement or concerns about a child's ability to manage money or responsibilities. However, excluding a child from a will can be complex and legally challenging. This article provides an overview of the key considerations for parents who are contemplating this decision.
Excluding a Child from Control Over Your Estate
When we talk about "excluding" a child in the context of a will, there are different levels to consider. The first and less contentious option is to exclude a child from having control over your estate. This means not appointing them as an executor or trustee of any testamentary trust created by the will.
Many people choose not to appoint a particular child as an executor due to concerns about their ability to manage the estate's administration or to handle financial matters responsibly. This is often a common decision even in families without estrangement issues.
For example, in a typical nuclear family will, the primary executors are usually the spouses, and the backup executors are often all the adult children. However, if a parent has concerns about one child's suitability—whether due to estrangement or other reasons—they may choose to exclude that child from these roles. There are no legal requirements mandating that all children must serve as executors or trustees. However, it is crucial to consider the relationships between siblings and the practicalities involved in such decisions.
The Complexities of Excluding a Child as a Beneficiary
Excluding a child entirely as a beneficiary from your will is far more complex. Many parents approach this decision with a sense of finality, believing it will prevent that child from receiving anything from their estate. However there are legal risks and potential challenges that could arise from such decisions.
Under Queensland law, specifically Section 41 of the Succession Act 1981, a child has the right to make a family provision application against an estate if they believe they have not been properly provided for. This right exists even if there has been a long-standing estrangement between the parent and the child.
If you have multiple children and exclude one of them from your will, the excluded child has the right to contest the will, regardless of the underlying reasons for the estrangement. The case law supports the view that an excluded child will likely receive something from the estate, though the exact amount is uncertain. What is clear, however, is that the costs of contesting a will can significantly diminish the value of the estate.
Consider Leaving a Reduced Amount
While it may seem counterintuitive, I often advise clients to leave a reduced amount to the excluded child rather than completely disinheriting them. This strategy forces the excluded child to weigh the costs and benefits of contesting the will. They must consider whether it is financially viable to challenge the will for a potentially larger share. Sometimes, the child may decide that the reduced inheritance is sufficient, especially if the estrangement is deep-rooted.
However, it's important to remember that leaving a reduced amount may still lead to disputes. It is essential to carefully consider the dynamics among the remaining beneficiaries and the potential stress placed on the executors, who will need to manage any legal challenges.
Red Flags When Excluding a Child from Your Will
There are a few red flags to watch for if you are considering excluding a child from your will:
Sibling-Led Exclusion: If another child is pushing for the exclusion of a sibling from your will, this is a significant red flag. It is crucial to remember that your estate planning decisions are yours alone, and you should not be unduly influenced by other beneficiaries.
Litigious Behavior of the Excluded Child: If the child you are considering excluding has a history of legal disputes or litigious behavior, there is a high likelihood that they will contest your will. Individuals who are comfortable navigating the legal system or have a pattern of making claims against others are more likely to challenge an estate. This potential should be carefully considered when making your decision.
The Importance of Understanding the Risks
Ultimately, the decision to exclude a child from your will depends on your personal circumstances and family dynamics. As an experienced estate litigation lawyer who has seen these situations get out of hand, my advice is always to understand the potential risks and ramifications up front. As your lawyer, my role is to present the legal options and risks so that you can make an informed decision that aligns with your wishes.
Some clients choose to proceed with exclusion despite the risks, while others may modify their estate plan to reduce the likelihood of a dispute. It is crucial to find an approach that minimizes the chances of costly legal battles and ensures your remaining children and chosen beneficiaries are not burdened with unnecessary stress.
Conclusion: Take Action Now to Protect Your Estate
Excluding a child from your will is not a decision to be taken lightly, and it requires careful planning and consideration. If you are estranged from a child and are considering excluding them from your estate plan, it is essential to seek professional advice to understand the implications and develop a strategy that protects your estate and intended beneficiaries.
If estrangement has prevented you from updating or creating your will, it is time to take action. Leaving matters unresolved will only create more complications after you are gone. At Vicca Law, we can help you navigate this challenging situation and develop an estate plan that reflects your wishes while managing the risks. Visit www.viccalaw.com.au to book a free consultation, or email me directly at lidia@viccalaw.com.au. If you have made a DIY will without understanding these risks, I strongly urge you to get in touch. Let's work together to create a plan that provides peace of mind for you and your loved ones.