Can you Exclude an Adult Child from your Will?

In a recent Qld court case, an adult son contested his 96-year-old mother’s will. The mother had 2 adult sons and left the whole of her estate to the older son. The estate was worth approximately $870,000.

This case highlights that where a deceased who has a will, who has also left a statutory declaration setting out the reasons for excluding an adult child from the will, the court will still scrutinise the situation and make their own conclusions (on the evidence) and may not accept the testator’s statutory declaration.

Facts of this Case

In this case, the deceased was survived by two adult sons, both who had received significant gifts during their lifetime from their mother. The younger son who was excluded from the will had received appropriately $300,000 more than the older adult son. The mother left the whole of her estate to the older son.

The court ultimately deemed that the current and future needs of the claimant/younger son gave rise to a valid claim that he had not been adequately provided for in the will despite significant gifts to him during the mother’s lifetime. This was largely due to the son’s future needs not being covered by his current financial situation.

The mother had left a detailed statutory declaration setting out the various reasons for excluding the son. These reasons included the gifts he had received during her lifetime and that she believed the son had also been inappropriately taking her money from her while acting as her power of attorney.

What the Court Decided

The court determined that these claims were mostly unsubstantiated and placed little if no weight on them. The court believed that if the mother had known and appreciated all the circumstances the court had evidence of, she would not have excluded her son when she made her will. The court found that the mother’s views of the excluded son were partly based on views formed after a meeting with the son who inherited the bulk of the estate.

It was also relevant to the court that the son excluded from the will had less assets than his brother who received the majority of the assets.

The older son who received the bulk of his mother’s estate in the will, had net assets of approximately $2.9 million.

The younger son who had been excluded from the will had net assets of approximately $1.28 million including a house. The younger son was also supporting his own adult children, had debts and loans, and health needs due to a chronic spinal injury from a military accident. He was dependent on his wife as his full time carer (although his medical expenses were covered by DVA) and could not work.

The court took into account that although he was not desperate financially (as he was currently supporting his own needs with his income and assets), his assets and income contained little buffer for the contingencies of life that might occur in the future (such as his need likely to increase as he ages) compared to his older brother who had significant cash reserves to support his likely future needs.

The court ultimately altered the will to give a gift of $250,000 to the younger son who had been excluded from the will - in an estate which had a net worth of appropriately $870,0000 (and was considered a modest estate).

Summary Conclusions

• Although the court considered that gifts made by the mother during her lifetime may affect the amount the claimant son received, it did not necessarily outweigh the current and future financial needs factors that should be taken into account.
• Substantial gifts made during a testators lifetime are less of a factor to be taken into consideration by the court when there is genuine financial need in the current and/or future time when the will maker dies.
• This case highlights that a person making their will need to consider adult children’s current and future needs despite already having provided for them during their lifetime.

This case highlights for anyone making a will, how important it is to engage an experienced Wills and Estates Lawyer.