At Antunes Lawyers, we are often asked to advise clients about whether an adult child can be left out of a Will, or left a smaller portion of the Estate. The answer often depends on the circumstances.
In today’s society, it is not unusual for parents to come into conflict or become estranged from an adult child. This can occur for a number of reasons including: disapproval of a lifestyle or a partner, past events, personal differences, drug or alcohol abuse, physical abuse, gambling, repeated requests for money or loans which are not paid back, or events that lead to grudges.
Generally every person can leave their Estate to whomever they wish. The only proviso is that adequate provision must be made for any adult children whom may have special needs and that this beneficiary displays no contrary conduct (wherever that is possible) which would otherwise dis-entitle them.
You can leave your adult child out of your Will if your adult child is able to adequately provide for themselves regarding their maintenance, education and advancement in life including retirement.
Therefore, if a child has done very well in a business or profession and can meet their daily needs and debts and provide for themselves adequately in retirement then there is no legal requirement to make provision for that child. Similarly if there are a number of needy children and there is not enough in the estate to satisfy everyone’s needs then the Courts will often permit a will maker to choose between needy children because it is not possible to satisfy everyone’s needs.
The real difficulty is when the situation is between these two extremes i.e. when there is an adult child with special needs, and the estate has wealth, but the adult child is somehow undeserving of provision or has become estranged due to a long separation and no contact.
In recent years the Courts have looked at these cases and have arrived at some guiding principles. These principles are not applied in black and white terms and the Courts can use a wide discretion in their application dependent on the facts of each individual case. Therefore it is not possible to generalise and clear legal advice in each situation is essential.
If there is a long estrangement where there has been hostility, callousness, some serious altercation against the parent or adverse to the parent or some declaration that the child did not want anything to do with the parent then it is possible that the Court may endorse a will maker’s wish to leave the adult child out of the will. If a child is one who generally has a bad reputation or is a gambler or cannot hold onto money or is a drug addict or generally leads an irresponsible lifestyle or one which the parent may not approve of and the child is in need of provision, then the situation is much trickier. At the very least the will maker can set out their reasons in a statement attached to the will in the hope that the Court will take that into account and confirm the will maker’s decision regarding no provision for that child.
Antunes Lawyers are well experienced in advising clients about this common problem. We ensure all contingencies are considered. We personally tailor your will, with any attachments, so that your intentions for your estate are considered and carried out.