Although your Last Will and Testament is a binding legal document which determines
how your assets will be distributed when you pass away, there is a common
misconception that you can always exclude certain people from receiving a share of
your Estate.
In some circumstances, parents will have an obligation to leave a share of their Estate to
their children when they pass away.
If you choose to leave your children out of your Estate, they may be eligible to make a
Family Maintenance Claim (“FMC”) and bring legal action against you.
This does not only apply to your children, but there are also other people who may be
eligible to bring an FMC application against your estate.
If I leave my children out, do they have a claim to my estate?
Certain classes of people have stronger FMCs than others. Generally, your children
should be included in your Last Will and Testament – particularly, children that are
dependent on you or that are subject to less advantageous circumstances (e.g, minors
and children with disabilities). They may otherwise choose to challenge it.
For example, people who can establish that they were dependant on you during your
lifetime will have a stronger claim than a person who was independent of you including
but not limited to financial dependence/independence.
There is no hard and fast rule about whether a FMC when taken to court will succeed. It
depends on your particular facts and circumstances.
If the Court makes an order granting a share of the inheritance to your children who
challenge your Last Will and Testament, the costs of the claim can be paid from your
Estate and the value that other beneficiaries are expected to receive may be reduced.
What would the court consider?
The Court may consider the following of the person who brings a FMC application:
• Their financial situation;
• Age;
• Employment status;
• Health;
• Size of the Estate;
• Competing claims of your other beneficiaries;
• The standard of living;
• The extent of contact between parties; and
• Your wishes – particularly those which have been documented.
When drafting your Last Will and Testament you should consider providing a share or
part of your Estate to your children. It is vital to seek legal advice with respect to
excluding persons from your Estate.
In some circumstances, parents may wish to exclude their children or one child from
their Last Will and Testament where they have an estranged relationship. It is important
however, to note that an estranged relationship does not solely preclude the child from a
FMC.
It is still however, a decision for the court to decide whether the person has been left out
of the Last Will and Testament fairly. This is dealt with on a case-by-case basis.
One particularly important point from the list above is whether your wishes have been
documented. It is recommended that you have documentation drafted such as a letter to
the Executor of your Estate, an Affidavit or Statutory Declaration which details the
reasons as to why this child or children has been excluded. This is important as the
Court will consider any reasons that have been evidenced by you when making the
dispositions in your Last Will and Testament.
Other persons who may have a claim to your Estate include your current spouse or de
facto partner. In circumstances where you are married and separating from your spouse,
it may be relevant to consider whether you meet the requirements for a divorce as your
Last Will and Testament may be impacted.
If you or someone you know wants more information or needs help or advice with estate
matters, please contact our Intake team on (03) 8415 5600 or email us at
reception@hartleyslawyers.com.au.
This article is intended to provide general information only and is limited to the Victorian
jurisdiction only. You should obtain professional advice before you undertake any
course of action.