Effect of a falling out may effect Family Provision Entitlements

Burke v Burke [2015] NSWCA 195 – Effect of a falling out may effect Family Provision Entitlements
Unfortunately, sometimes there are times when there is a falling out between family members. The reasons are often complex but can result in an estrangement that may be long lasting. More often than not, this occurs between parents and adult children and can cause great difficulties when the parents come to making their wills. The NSW Court of Appeal in a recent decision (Burke-v-Burke decided 13/7/2015) confirmed that there is no general legal principle that where an adult child is estranged and is in financial need that provision need be made for them. In this case the Court gave the child nothing even though he was in serious financial need. In an earlier decision the Court did make provision for such a child but only a very small part of the estate. The ruling of the Court in Burke, whilst not new law, has made clearer the obligations a parent will need to consider where they are making their will and what provision, if any, they need to make for an estranged child. The writer has spoken to many parents in this position and more often than not, they do not wish to leave that child anything. One of the problems in making a will is that a child has a legal right to make a claim if they are left little or nothing under the will. Whilst, in the end, they may not succeed, the legal cost of a challenge can devastate the estate. So, what issues need to be considered when making your will in these circumstances? Firstly, it is the conduct of the child towards the parent that is important. The child cannot be blamed if it is the act of the parent alone that has caused the estrangement. Secondly, consideration needs to be given to a number of other factors including the size of the estate, the financial needs of the estranged child and the financial need of the other beneficiaries in the will. The child’s conduct towards the will maker needs to be carefully analysed. There is no one simple answer but the guidance of the Court’s decision is that, in appropriate cases, an adult child can be excluded from the will.

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