Please note: This is a fictionalised version of a real outcome in the Supreme Court of Victoria.
The purpose of the #contestawillwithrobinsongill series is to educate the public about the risks, opportunities and realities of disputing wills and estates in plain English.
Are adult children owed the same obligations following a parent’s death?
When a parent’s will appoints one child as sole executor and beneficiary of the estate, and excludes another child, do they have a case to successfully contest the will?
Noah was 83 years old when he passed away. In his will, he left his entire estate to his eldest, and only biological daughter, Grace, who was also appointed as executor. His other child, an adopted daughter Charlotte, was not included in the will.
Grace had been estranged from her father for more than 15 years before reconnecting with him shortly before his death.
Charlotte, Noah’s adopted daughter, had taken care of her father for many years when he had fallen sick within a few years of retirement. Charlotte suffered from a medical condition herself which left her with limited mobility and rendered her unable to work. Charlotte made a claim for a share of her late father’s estate.
Can an Adult Child Contest their Exclusion from a Parent’s Will?
The Court considered the fact that Grace, the defendant in the proceedings, had received significant financial benefits from her father throughout his lifetime. The Court also considered the fact that Grace had taken large sums of money from her father whilst he was in residential care. The Court also considered Grace’s improper conduct in her manner of executing the estate.
Evidence at trial alleged that Charlotte, the adopted child and plaintiff, had not been as close with her father throughout the last two years of his life. However, it was clear that they had shared a close and mutually supporting relationship for many years prior. It was also alleged that there was a dysfunctional family dynamic, and that the recent lack of closeness between Charlotte and her father had come about as a result of intervention by Grace.
Taking all of these factors into account, the Court found that Noah’s will did not meet the moral obligation that he owed to his plaintiff daughter.
Recognising an Adopted Child’s Rights
Section 90 of the Administration and Probate Act 1958 allows a child (adopted or otherwise) to contest a will as an eligible person.
The Court then had to consider the question of what she was entitled to in order to provide her with adequate and proper maintenance as at the time of trial. In making its decision, the Court made the following considerations:
- The Court emphasised that surrounding circumstances are relevant in any determination of a claim. Adverse behavior by a party may result in an adverse costs order, which can require them to personally pay both parties’ legal costs without indemnification from the estate.
- The Court reiterated the importance of administering an estate properly. This includes ensuring that any distribution of assets is not made prior to 6 months after obtaining a grant of probate (which is the point at which a party may file a claim challenging the will or requesting further provision).
- The Court may order that either a percentage of an estate be paid to a claimant, or a fixed sum, dependent upon the size of the estate and the assets therein.
Taking all relevant factors into consideration, the Court’s final decision was as follows:
- The Court ordered that the Plaintiff be awarded $470,000.00 from the estate, which represented the sum repaid from a nursing home bond.
- The Court was critical of the Defendant’s conduct. She was found to have mis-used estate funds, distributed funds earlier than 6 months after the grant of probate was obtained, and taken advantage of her father’s financials prior to his death. The Court made a costs order against the defendant.
Key Lessons and Takeaways from This Estate Litigation Case
Real life scenarios, like Charlotte’s, provide a number of valuable insights if you are considering contesting a will. Our key takeaways from this story are:
- Always seek legal advice from an experienced estate litigation lawyer when making a will. They will ensure that all factors and variables are considered and taken into account.
- If you are a child who has been excluded from your parent’s will (or has received a “less than expected” entitlement), seek legal advice as early as possible from an experienced estate litigation lawyer.
- In Victoria, a will may only be contested if a claim is made within 6 months of probate or letters of administration being granted (some exceptions do apply).
- When estate planning, ensure that you are explicit in your intention that any early inheritance that you provide to beneficiaries may be in place of any further provision in the event of your passing.
- Successfully contesting a will can have significant financial consequences. Experienced estate litigation lawyers can help defend against claims from other beneficiaries. Legal fees are often funded by the estate itself.
Conclusion.
If you are a child who has been left out of a parent’s will, seek advice as early as possible from an experienced estate disputes lawyer.
How can I learn more?
Rachael has helped a number of individuals successfully dispute wills that they have been unfairly left out of or left inadequate provision. She also has experience in defending claims made by individuals against deceased estates.
Some other resources you
might find helpful
Estate Planning Document Health Check
If you have not reviewed your Will and Powers of Attorney recently, you may want to review these documents to ensure that they are up to date with your current circumstances.
Supportive Powers of Attorney
If you or someone you care for requires assistance in understanding, making or executing personal and financial decisions, then you may want to prepare a Supportive Power of Attorney.
Appointment of Medical Treatment Decision Maker document
An enduring power of attorney (medical treatment) is a document whereby you appoint someone (your medical agent) to make decisions regarding your medical treatment when you are unable to decide for yourself.