Can a Child of the Deceased Contest a Will in NSW?
A child may be disinherited for many reasons.
It may occur where the child is independently wealthy, where the child is estranged from the parent, or where a child has been ‘passed over’ in favour of a grandchild.
Regardless of the reasons, any child who receives less than what they were expecting or nothing at all, should seek legal advice.
For the purposes of contesting a will in NSW a ‘child’ includes biological children, adopted children, ex-nuptial children, and children of same-sex relationships.
Other categories of children (step-children, foster children, children of IVF etc) may also constitute an eligible person for the purposes of contesting a will in NSW, however closer consideration would be required.
Factors That May Affect an Adult Child’s Ability To Contest a Will
The factors that may affect an adult child’s ability to contest a will include:
- The nature of the relationship between the parent and child.
- The nature and extent of any obligation owed by the parent to the child.
- The nature and extent of the parent’s estate.
- The financial resources and financial needs of the child and other beneficiaries.
- The financial circumstances of anyone with whom the child is cohabiting.
- Any physical, intellectual, or mental disability of the child.
- The child’s age.
- Any contribution the child made to the acquisition, conservation, and improvement of the parent’s estate.
- Any provision made by the parent to the child during their lifetime.
- The parent’s testamentary wishes.
- The character and conduct of the child.
- Any other matter the court considers relevant.
What the Court Will Consider in a Will Contest Case
Whilst it is possible to disinherit a child – a court may intervene to rewrite the terms of the will if the child successfully contests the will.
The factors the court may consider when a child contests a will include those set out below.
The nature of the relationship between the parent and child
The nature of the relationship between the parent and child may be relevant to a claim.
A close and loving relationship will usually provide the basis for a stronger claim compared to one involving deep spite, conflict or estrangement.
In the case of estrangement, the court will often consider the duration, origin and contributors of the estrangement, when determining its relevance. A child who made a genuine attempt to reconcile with their parent before the parent’s death may go some way in curing the negative impact estrangement may have on a claim.
The nature and extent of any obligation owed by the parent to the child
A parent’s obligation to a child will usually wane as the child ages but it will depend on the circumstances. If for example the child has a disability or is dependent on the parent for some other reason, this may be relevant to a claim.
The nature and extent of the parent’s estate
The nature and extent of the estate may be relevant to the claim.
Generally, the larger the estate the more there is to be shared among the beneficiaries.
The financial resources and financial needs of the child and other beneficiaries
The child’s financial resources and financial needs may be relevant to a claim. A child who has limited financial resources and who has financial need may have a stronger claim than an adult child who is independently wealthy in their own right.
The financial circumstances of anyone with whom the child is cohabiting
The court may also take into account the financial circumstances of any person with whom the child is cohabiting. For instance, a daughter who makes a claim on her parent’s estate may be expected to provide full financial disclosure of her financial resources in addition to that of her boyfriend, de facto, or spouse.
Any physical, intellectual, or mental disability of the child
Any physical, intellectual or mental disability of the child may be relevant to a claim.
The child’s age
The child’s age may be relevant to a claim.
A young child who is still dependent on their parents for the necessities of life and education and who has the rest of their life ahead of them may have a stronger claim than someone who is of advanced age and is nearing the end of their life.
Any contribution the child made to the acquisition, conservation, and improvement of the parent’s estate
Any contributions the child made to the acquisition, conservation, and improvement of the parent’s estate may be relevant to a claim.
Common examples are farming families where the children have spent years or decades working on the family for no or minimal financial reward.
Any provision made by the parent to the child during their lifetime
Any provision made by the parent to the child during their lifetime may be relevant to a claim.
For example, a child who has received large regular gifts from the parent during their lifetime may have a weaker claim than a sibling who received nothing from the parent during their lifetime.
The parent’s testamentary wishes
Sometimes when a parent disinherits a child in their will they prepare a document (i.e., statutory declaration, letter) setting out the reasons for doing so.
Where a deceased has left a document setting out their reasons it may be relevant to a claim.
The character and conduct of the child
The character and conduct of the child may be relevant to a claim.
A child who subjects the parent to verbal, physical or psychological abuse during their lifetime may have this factor weight against them on a claim.
Some parents may be emotionally or financially abused by their children, particularly in their older years (for will disputes involving undue influence, read our Guide to Challenging a Will in NSW).
Any other matter the court considers relevant
Ultimately, the court has a wide discretion to take factors into account and it’s important to seek expert legal advice if you have been left less than you were expecting.
Unequal distribution of assets
Most claims by children arise in the context of unequal or disproportionate gifts.
An example is where a parent had two children but split their estate 30% to one child and 70% to the other child. This appears unfair on its surface. However, there may be valid reasons why the parent chose to do this – it may be because the child who receives 30% is independently very wealthy or is estranged from that parent.
A disproportionate distribution of assets does not necessarily mean the person who receives less can contest the will, however, it often warrants closer consideration.
A child will only succeed in contesting a will if they can satisfy a court that their parent’s will did not make adequate provision for their proper maintenance, education, and advancement in life.
Sometimes, a parent tries to avoid a future claim against their estate by leaving the child a small gift – with the hope that the gift is either sufficient to deter the child from bringing a claim, or if they do bring a claim, sufficient to constitute ‘adequate provision’ in the court’s eyes. This can often achieve its objective but requires legal advice and somewhat of a ‘crystal ball’.
A child seeking to contest a will bears the burden of proving their claim. Therefore, the strength of a claim will depend on the evidence available to prove it.
Some of the evidence that a child may rely on includes:
- Evidence to establish their relationship with their deceased parent was one that was loving and close.
- If the relationship was one of estrangement, evidence to establish that the child made genuine and/or recent attempts to reconcile with the estranged parent.
- Documents establishing obligations owed by the parent to the child.
- Evidence of the nature and extent of the estate (i.e., property searches, bank records, shareholdings).
- Financial records for the child showing poor financial position.
- Financial records for anyone you are cohabiting with showing poor financial position.
- Medical records to establish any physical, intellectual or mental disability of the child or anyone the child is caring for (i.e., grandchild of the deceased).
- Documents to prove any contributions made to the deceased parent’s estate.
- Documents to discredit other claimants or beneficiaries.
Case Study of a Successful Case
Lalic v Lalic  NSWSC 31
The case of Lalic v Lalic involves a claim by a 66 year old adult son against the estate of his late mother.
In her will, the mother left her estate (consisting primarily of the family home) to the two youngest children, the two eldest children having received blocks of land in consideration for their contributions to their parents’ fruit and vegetable business.
The claimant, one of the two eldest sons, had succumbed to financial hardship having lost the land that he had been gifted, was not able to work, in the process of divorce, and was in receipt of a government pension.
The claimant son was awarded $125,000 from the estate.
Case Study of an Unsuccessful Case
Georgopoulos v Tsiokanis & Anor  NSWSC 563
This case involved a claim by an adult daughter.
The claimant, the eldest of three children, brought proceedings against the estate of her late father. The facts centred on the relationship between the plaintiff and the deceased, and specifically the plaintiff’s treatment of the deceased which steadily escalated from hostility to physical violence, resulting in the deceased obtaining an AVO against the plaintiff.
In his will, the deceased left the plaintiff a nominal sum of $100 from an estate which at the time of the trial was $368,805 accompanied by detailed statements explaining why he had left the plaintiff so little.
The court dismissed the plaintiff’s claim on the basis that “the plaintiff’s conduct before, and after, the death of the deceased may be regarded as reprehensible…this is not a case in which the hurts were inflicted, or suffered, unconsciously.”
Looking for legal assistance when it comes to contesting a will in NSW?
If one of your parents has excluded you from their will or you suspect they are planning on doing so in the future, contact us now on 1300 414 844 for a confidential and obligation-free initial consultation.
Want to learn more?
Read more about who can contest a will here.
Read more about the time limits when contesting a will here.
Read more about the evidence you need when contesting a will here.
Stay tuned for an upcoming blog on the rights of grandchildren and stepchildren when contesting a will.
Disclaimer: the information in this article relates to NSW law and is general information only. It does not constitute legal advice and should not be relied upon. If you have a question or legal issue we recommend you contact a lawyer and obtain legal advice that takes into account your specific facts and circumstances.