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Testamentary freedom v Testamentary duty

In a word – most likely yes, if the child; irrespective of their age, has a need.

A person is free to set out in a Will their intentions for the distribution of their assets after death. In Australia; however, that testamentary freedom is not absolute. It is not absolute because parents who wish to make a Will leaving little or no provision for their children are warned that they are running the risk of the child bringing a court action claiming provision. Thus, we see a battle between testamentary freedom and testamentary duty, as a child, as an eligible person, has a right to be adequately provided for.

Case study: Estranged child

In the case of Keep v Bourke (2012). Joyce Keep left her entire estate to two of her children, to the detriment of her third child from whom she was estranged for 38 years. Ms Keep’s Will included the reason why she wasn’t providing for her estranged daughter, namely due to her daughters ‘complete lack of concern or contact with me and other members of my family over a long period of time’.

Despite Ms Keep’s testamentary wishes, it was held that her daughter had a need and was entitled to $175,000 of the Estate worth $623,000. The fact that Ms Keep instigated the estrangement helped her daughter’s case, even though the estranged daughter never attempted reconciliation. It is important to note that the ­need is of major concern in such a circumstance.

Note: Needs are often determined by the financial resources and financial needs both present and future of the applicant and any physical, intellectual or mental disability.

[us_testimonial style=”4″ author=”Anthony Higgins” company=””]This was an experience that I knew would be hell, however I am truly grateful to the team at Hentys Lawyers, for without this fight I would have received nothing! [/us_testimonial]

Case study: Believes adequately provided for

In the 2004 case of Crossman v Riedel a mother made a new Will apparently influenced by an interstate daughter who had fallen out with her two local siblings. The new will minimised the share of the local children who lived in modest circumstances, claiming that they were stable. The two siblings applied for further provision and despite the wishes of their mother the judge held that each were to receive a quarter of the Estate.

The take away

What these two cases demonstrate is if a will maker wishes to disinherit or leave a reduced benefit in a Will, great care needs to be taken as despite estrangement or ill feelings, a child will always be eligible to make a claim under a Will. Further, if they can establish a need i.e.; financially insecure, disability, have a vulnerable child, the court will ensure adequate provision is made for their proper maintenance and support, despite testamentary wishes.

For more information, do not hesitate to contact the team at Hentys Lawyers today.

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