Planning for estrangement with your children
Family relationships can be complicated, and unfortunately, estrangement between parents and children is more common than many might expect. When a parent is estranged from a child, estate planning becomes more emotionally and legally complex. While some individuals may wish to leave nothing to an estranged child, doing so comes with significant risks, particularly in Queensland, where children have an unconditional right to contest a will if they believe they have been inadequately provided for.
Understanding these risks and planning strategically can help ensure that your estate is distributed according to your wishes while minimizing the potential for costly and stressful disputes.
The Legal Reality: Estranged Children Can Contest a Will
Under Queensland’s Succession Act 1981, children—regardless of their relationship with the parent—can challenge a will if they believe they were not properly provided for. Even if a child has been estranged for decades, they still retain this right.
Many parents assume that because they have not had contact with their child for many years, they can simply exclude them from their will without any consequences. However, if an estranged child challenges the will, it can lead to:
Lengthy legal battles – Contested wills often take years to resolve.
Significant costs – Legal fees can drain the estate, ultimately reducing the inheritance for the intended beneficiaries.
Emotional distress for executors and family members – Contesting a will places a heavy burden on the executor, often a close family member, who will need to handle the legal proceedings.
Because of these risks, estate planning for estranged children requires careful thought and professional legal advice.
Estate Planning Strategies for Estranged Children
If you are estranged from a child and want to minimize the risk of your will being contested, there are several approaches you can take.
1. Leaving a Small Inheritance Rather Than Complete Exclusion
One option to deter an estranged child from contesting a will is to leave them something, rather than excluding them entirely. While it may feel counterintuitive, providing a modest inheritance can discourage legal action because:
The child must weigh whether contesting the will is financially worthwhile.
They may be less likely to argue that they were not “adequately provided for.”
The amount to leave depends on the circumstances, but it should be significant enough to discourage legal action but not so much that it undermines the estate plan.
2. Using Statutory Declarations to Explain the Estrangement
If you are set on leaving an estranged child out of your will, providing documentation is crucial. A statutory declaration outlining the reasons for the estrangement can serve as supporting evidence if the will is contested.
The declaration should:
Detail the history of estrangement.
Highlight any previous financial support provided to the child.
Clarify the reasons for their exclusion from the will.
While a statutory declaration does not prevent a child from contesting the will, it provides valuable context that a court may take into consideration when assessing the claim.
3. Appointing an Executor Who Can Handle the Dispute
If an estranged child contests the will, it will be the executor’s responsibility to handle the legal battle. This can place a significant emotional and financial burden on the executor, especially if they are another child of the deceased.
Considerations when choosing an executor include:
Selecting someone who is willing and capable of handling potential legal challenges.
Appointing a professional executor (such as a lawyer or trustee company) instead of a family member to remove personal conflict.
Ensuring the executor understands the risks associated with an estranged child contesting the will.
4. Structuring Assets to Reduce Estate Disputes
One way to prevent an estranged child from contesting a will is to reduce the number of assets that pass through the estate. This can be done by:
Using joint ownership structures – Assets held in joint tenancy automatically pass to the surviving owner and do not form part of the estate.
Nominating beneficiaries on superannuation and life insurance policies – These assets do not automatically form part of the estate and can be directed to a specific beneficiary.
Setting up trusts – Testamentary trusts or family trusts can be structured to distribute assets outside of the estate, making them more difficult to challenge.
By reducing the size of the estate, there are fewer assets available for contestation, potentially discouraging a legal challenge.
5. Being Mindful of the Influence of Other Beneficiaries
When dealing with estranged children, it is essential that estate planning decisions remain free from outside influence. Courts closely examine cases where an estranged child has been disinherited, especially if another child or family member has had significant involvement in the decision-making process.
Red flags include:
Other beneficiaries being present during meetings with an estate planning lawyer.
Pressure from family members to exclude an estranged child.
Sudden changes to the will under external influence.
A valid will must be made independently by the testator, without coercion or undue influence from others.
Understanding the Risks: What Happens If a Will Is Contested?
If an estranged child contests a will, the estate may face:
Negotiation and Mediation – Most cases settle before reaching court, but this still incurs legal fees and delays.
Court Proceedings – If no agreement is reached, the case may proceed to court, where a judge decides on the estate’s distribution.
Significant Costs – In some cases, legal fees for both sides may be paid from the estate, further reducing the inheritance for other beneficiaries.
Since there is no way to guarantee that a child will not contest a will, strategic estate planning is essential to minimize risk.
Updating Your Estate Plan as Relationships Evolve
Family relationships change over time. Estrangement may be permanent, or there may be a chance for reconciliation in the future.
Regularly updating your will ensures that your estate plan reflects your current wishes and family dynamics. It is particularly important to review your estate plan if:
The estrangement worsens or improves.
A new child is born or an existing child gets married or has children.
Financial circumstances change.
By keeping your estate plan current, you reduce the risk of unintended consequences and ensure that your assets are distributed according to your wishes.
Dealing with estrangement in estate planning is emotionally difficult, but it is crucial to approach it with a clear legal strategy. The goal is to minimize risk, protect other beneficiaries, and ensure that your estate is distributed according to your wishes.
If you need expert advice on planning for estranged children in your estate, book a consultation at www.viccalaw.com.au or email lidia@viccalaw.com.au.