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Can a child contest a will?

Parents can cut children and stepchildren out of their will – or exclude grandchildren, nieces and nephews – but this doesn’t always mean these individuals are comprehensively barred from receiving some of those decedents’ inheritance.

If you believe that you or one of your children has been unfairly or even illegally excluded from a will, or that undue influence was brought to bear on the testator when they were estate planning, you may have the right to contest the will and demand an equitable provision from the estate.

Who can contest a will, in general?

Can a child contest a will? If it can be shown that the child or other young relative was supported by the deceased at any point and that their exclusion from the will causes them to lack support, education or other needs, there may well be a claim.

Being an eligible person

Across most Australian jurisdictions, the following children are considered eligible persons:

  • Children of the deceased (includes an adopted child)
  • Grandchildren of the deceased (especially if their parents are also deceased)
  • Stepchildren of the deceased (in some jurisdictions)
  • Children of a domestic partner (under some circumstances)
  • In most cases, if a child was a dependent of and living with the deceased at the time of the decedent’s death, and their own parents were also deceased, this can be grounds for contesting a will.

 

In addition, some other persons who are children and wholly or partially dependent on the deceased for their financial well-being may also be considered an eligible person.

Reasons to contest a will

The most common reason for contesting a will is through a daily provision claim. In cases when the deceased person was at odds with family members, there may be a temptation on their end to disown, disinherit or cut children out of the will.

However, thanks to Australia’s succession act, there is a moral obligation when it comes to children and inheritances. This makes it fairly common for children to contest a will through a family provision application and win, if they can show they have a financial need that can be met by a fair apportionment of the deceased’s estate.

If a child has been excluded or not given as much inheritance as is believed to be due, and they are an eligible person, the contest of the will typically hinges on “adequate provision.” This means that being excluded from the will or given a small inheritance does not provide for a dependent child in the manner to which they are accustomed or which can be considered reasonable.

In such cases it is necessary to prove dependency. This is obviously a much easier task if the dependent was living with and supported by the deceased person.

It may also be fairly easy to prove if the decedent was supporting the child in a substantial way even if the child was not living with them at the time of the decedent’s death.

Australian law requires a person to create their will to make provisions for dependants. Estate planning should always reflect these requirements. However, sometimes wills are made under undue influence by third parties who will seek to bias them for or against certain persons or family members. In such cases, a will may not only be contested, but it may also be challenged in court on the grounds of testamentary capacity.

How should claims be brought by minor children?

In addition to establishing that a minor child is an eligible person, it must be demonstrated to a court that the child is in need of provision, and that the deceased had a moral responsibility to support the child financially. A family provision application should be filed as soon as reasonably possible, and you should seek legal; representation to help ensure your child is duly cared for.

Moral obligation is implied for a surviving spouse or children of the deceased. There may be extra complexities in regard to an inheritance claim if the deceased was estranged from the family for many years, or a disinherited child has become an adult. However, for minor children, even if the deceased was not in contact, there is likely to be a moral obligation for reasonable financial provision.

The contesting process

It must be demonstrated that the deceased had a moral obligation to a minor or adult child, and that the child suffers from lack of funds or were financially hurt by the deceased’s death.

If the child is easily shown to be partially or fully financially dependent on the deceased, this can be accomplished fairly easily with the help of a knowledgeable will dispute attorney. The factors examined will include:

  • Overall financial need
    Relationship to the deceased
  • Obligations owed to the child by the deceased
  • Financial circumstances (especially as compared to other beneficiaries, such as siblings)
  • Physical, intellectual or mental disabilities

A common question is what children connected to the deceased may contest a will? It’s not exclusive to children and grandchildren. Any child with an interest in standing may have grounds to contest a will. This can include:

  • Much younger siblings, especially if they were living with or dependent on the deceased
  • Nieces or nephews, or younger cousins who were in any way dependent
  • An adopted child whose adoption process was not yet complete
  • Disinherited children (in most cases, disinheritance of a child does not stand)

The key is to show that the child has an interest in standing, whether through being dependent on the deceased, or financial harm from broken promises.

Should a will be contested or challenged?

If it is agreed that the decedent was of sound mind and not being unduly influenced by a third party at the time their will was made, and it is only the apportionment of the estate in question, the will can be contested.

However, if mental state or acuity is being brought into doubt, or it is believed that the deceased was being unduly influenced in the years, months, or weeks before their death, prompting the making of a new will that was markedly different and excluded or minimized inheritances to children, the will may need to be challenged. Your lawyer can help you decide which approach is correct.

Mediation and settlement

In most cases, the will being contested can be settled through a medication process. Mediation can be heavily dependent on evidence that has been gathered and organised to make your case for the contestation. Most contests that are completed with the representation of a qualified estate and will dispute lawyer end in a settlement. The amount of the settlement can be either a fixed amount, or a percentage of the deceased’s estate, and may consist of funds, assets or both. In some cases real estate may change hands.

Going to court

If mediation doesn’t produce the desired results, then your lawyer may advise taking your case to trial. In many cases, even going to trial pushes the case toward a settlement before you actually appear in court or after initial appearances.

Ideally family business can be settled discreetly and out of public view, However, there are always cases in which resolution can only be achieved by going before a judge.

The judge is responsible for reviewing all of the evidence and taking all factors into account before making their decision. They will determine if the applying child is an eligible person or if they have an interest in standing, and may also verify or invalidate the will in cases when the decedent’s mental capacity was called into question.

Finally, the judge will be responsible for determining the amount to be awarded to the child contesting the will. This may be a substantial amount, especially if a financial need was shown that will continue for many years before a minor child reaches maturity.

Next friend/guardian ad litem

Are you wondering, “Can a child contest a will as a minor?” If the claimant is a minor child, they typically cannot bring their own claim, but must be represented by their guardian ad litem, or a “next friend” (often a parent or legal guardian). This person should be acting in the child’s best interest.

The solicitor on the record must file an affidavit stating that the guardian ad litem is a fit, proper person with no interest adverse to that of the child. (There is no remuneration for acting in the position of next friend or guardian ad litem.)

An infant may sue as plaintiff via his next friend, who must bear responsibility for the conduct of the proceedings and incurs liability for litigation costs. They are not a party to proceedings and are not entitled to appear in person, and must give written consent before being appointed as the next friend or guardian ad litem. Additionally, the court may appoint or remove a next friend or guardian ad litem at its discretion.

Can minor children without representation make a claim?

Any civil proceedings, including contesting a will, that are initiated by a child without the intervention of a next friend may be dismissed by the court out of hand, although they can continue if there is no objection from the defense.

However, the solicitor on the record may be ordered to pay costs, which serves as disincentive for representing a minor child directly without a guardian ad litem. For those asking, “Can a child contest a will as a minor without representation?” it is generally advised against.

However, in some cases, a young person may be deemed to be sufficiently mature to take action such as contesting a will on their own. If they have valid cause but no suitable family member to act as next friend, it has been suggested that they could be subject to the mature minor test, particularly if they are living independently and obviously competent. The court can determine if a next friend or guardian ad litem should be appointed.

While it would be hoped that estate planning would establish a provision for each child associated with the decedent, this is not always the case, and the family may become embroiled if different members feel their child has been passed over unfairly or that the estate was divisioned inequitably.

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Gerard Malouf & Partners
 — Personal Injury Compensation Lawyers

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