The death of a parent can be difficult for a child at any age, and even more distressing when they find out that they have been left out of the Will. But what can be done? Was that not what their parent wanted?
The child of a deceased parent, regardless of their age or independence, can apply to the courts to have the distribution of the Estate reconsidered under the family provisions or family maintenance laws (family provisions claim). (1) Here the law acknowledges that a parent may have a responsibility to provide for the ongoing financial care and education of their child; however, it is not mandatory that they do. (2)
They are an adult and can take care of themself
It is easy to accept a court’s decision to reallocate a parent's Estate for the maintenance of a minor. For adult children, the courts will use their discretion and assess the needs of each case individually. They will consider what the relationship was like between the parent and child, if there had been a financial and emotional dependence previously and to what degree. The courts will also take into account the child’s current age, health and financial situation and the overall value of the estate when making their findings.
What about my share?
It is important to note that if the deceased had more than one dependent or beneficiaries listed in the Will, the court is not required to divide the Estate equally when considering applications from an excluded child. An adult child that is financially secure, and/or that had benefited financially while the parent was living, may not succeed in their claim for a share of their parents' Estate, while their siblings, who are not as secure, are entitled to access their share as outlined in the Will. (3)
But they were not even talking!
The courts have found that an estrangement between parent and child does not remove responsibility off the parent or automatically void an application for a family provision claim. (4) Previously the court has acknowledged that an adult child, that had made attempts to amend the relationship with their parent, was entitled to a greater share of the Estate, even though the parent had rejected the attempts at reconciliation. A Will including an explanation that the child was excluded because of a falling-out will not be exempt from a family provision claim. (5)
What should you do next?
The law varies between States and Territories however all have timeframes that must be followed to submit a family provision claim, so it is important that you seek specialist legal advice as soon as possible.
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1. Family Provision Act 1969 (ACT); Family Provisions Act 1970 (NT); Succession Act 2006 (NSW); Succession Act 1981 (Qld); Inheritance (Family Provisions) Act 1972 (SA); Testators Family Maintenance Act 1912 (Tas); Administration and Probate Act 1958 Pt IV (Vic); Family Provisions Act 1972 (WA)
2. Vigolo v Bostin (2005) 221 CLR 191
3. Vigolo v Bostin (2005) 221 CLR 191.
4. Jodell v Woods  NSWSC 143; Duncan v Gibson  QSC 204.
5. Burke v Burke(2015)ASTLR 313.