If you need advice about how wills can be safeguarded or challenged, the Dispute Resolution team at Lewis Lawyers are experts at guiding you through the process, with a focus on reducing risks and understanding your unique position. Contact Keira McGregor or Tarsha Makgill.
Wills are being challenged more frequently and mostly by adult children. Blended family structures and strained parent-child relationships have played their part in this increase. These proceedings can be lengthy, costly, uncertain, and damaging to family relationships.
Parents can play favourites
Sometimes, a parent can successfully leave less to one child than another or make no provision for one child at all. However, this opens the door to their will being challenged. Under the Family Protection Act 1955 (FPA), adult children can bring a claim for further provision from a parent’s estate when they feel that they have not been adequately provided for or that their role in the parent’s life has not been sufficiently acknowledged by the bequests (gifts) in the will.
By making unequal distributions, the will maker could be inviting their children (or spouse, de facto partner, and sometimes parents, stepchildren and grandchildren) to bring an action against the estate in court. The Court has the discretion to amend the terms of the will when it finds a breach of their moral duty owed to their family members.
Will makers have a moral duty
So long as the person making the will satisfies their obligations, including the moral duty to provide their child with “proper maintenance and support” under the FPA, the person making the will is free to deal with their property in their will as they like.
The moral duty is not owed purely because the parent-child relationship exists, but due to the strength of this relationship. Certain actions strengthen and weaken the moral duty to provide for the child. Serious misconduct from the child towards the person making the will weakens the moral duty and may disentitle them from a moral claim completely. A closer relationship or increased need for maintenance and support strengthens it, for example if the child had good reason to be financially dependent on the parent at the time of their death. If the will is challenged, the Court looks to answer the question of whether the deceased breached their moral duty to provide and support for the claimant from the standard of a wise and just will maker.
I still want to make unequal bequests to my children. What should I do?
If parents wish to leave different amounts to their children, without their estate facing a successful claim, there are a few things they can do. They need to demonstrate a valid reason for an unequal distribution between children such as one has more financial need, they have previously given financial support to a child so wish to balance the total benefit given to each of their children, or recognition of contributions made by a child to the parent’s welfare. The exclusion of a child may be justified – for example, a distinct and meaningful period of estrangement brought about by the child, or serious conduct by the child towards the testator.
Parents should clearly communicate and document intentions and reasons through a letter of wishes (if assets are in trust), conversations with their lawyer that may be recorded in a file note and kept with the will or other documents showing reasons for the decision. Don’t be surprised if a lawyer advises against your position as, despite documented reasons, there is no way to prevent a claim being made against the estate.
How much does the Court say I should leave?
There is no strict formula or calculation that the court applies when assessing whether there has been a breach of moral duty. An unequal provision alone is not enough to justify the court getting involved. The court should do no more than the minimum to redress a breach – it is not the court’s role to rewrite a will. Whether the court decides the deceased has not made adequate provision for the “proper maintenance and support” of the claimant depends on the circumstances of the case.
Relevant factors when the court determines the strength of a claim may include moral and ethical considerations such as the relationship between the person making the will and the claimant, closeness or estrangement of the relationship as well as the size of estate and the claimant’s financial circumstances, age and health, the will maker’s wishes, gifts made during the testator’s lifetime to the claimant and social norms.
Below are some examples of cases and considerations:
A mother died leaving an estate of $1 million. She left $50,000 to her oldest daughter, and the other 95% of the estate to the younger daughter. The older daughter was in a better financial position than the younger one and so the mother chose to leave more to her younger daughter. The eldest daughter claimed that her position in the family had not been recognised nor her contributions to her mother’s life. The High Court found the mother had breached her moral duty to the eldest daughter for these reasons. The younger daughter appealed to the Court of Appeal. However, the eldest daughter was awarded an extra $50,000 due to the larger estate, contributions she had made during her lifetime, and ethical considerations about how support is more than just financial maintenance and a child needs to feel that they belong to the family.1
A father died leaving an estate of $17 million. He made no provision for the children, except for making them beneficiaries to a trust that would receive the residue of the estate. The High Court awarded each child $1.25 million, not the $3 million they sought. It was held that this amount would be a rewriting of the will as it only left 20% in the Trust, defeating the will maker’s wishes. This case shows that the courts will only alter a will as much as necessary to make adequate provisions.2
A mother left from her estate of $2 million, $200,000 to her daughter and most other assets to her son. The daughter and mother had a bitter and long running dispute. The High Court held that the dysfunctional and often non-existent relationship meant that $200,000 discharged her moral duty.3
A father left nothing to an illegitimate daughter from an extramarital affair. He kept his daughter’s existence a secret from his wife and two sons (they were provided for in his will), told her not to call him dad or acknowledge him in public. When placed into care, a social worker reached out to the father to make contact to alleviate her mental distress, but he refused. The daughter continued to suffer because of childhood abuse and her limited relationship with her father. Her financial, living and employment situation was uncertain, and she needed financial help. The court found the daughter had been affected by her father’s absence and he breached his moral duty to her in his life and will. The courts held 70% of the estate would remedy the breach of moral duty the father had to his daughter.4
No family or situation is the same; and so, it follows that our advice for each will also not be the same. This also applies to wills that make bequest to trusts – everything depends on the documents.
If you have any questions about making a claim against an estate or defending one, contact our Dispute Resolution Team today.
17 September 2024
