True Stories - Cutting out a relative in your Will

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TRUE STORY:
Cutting out a relative in your Will

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"My name is Peter Janssen and I have been a Solicitor in Australia for over 15 years. During this time I have encountered some amazing cases in the Wills and Estates area. In this section, I discuss some of the true stories that have come across my desk. Obviously the names and circumstances have been changed to keep parties anonymous. You'll get some valuable insights from these true stories."

Over the years I have seen quite a few people who want to leave out one of their children in their Will. Now this may seem a little harsh and unjust, but this is not always the case.

The facts

One elderly, widowed lady that I saw had three children, all of whom were in their 30's and 40's. Her eldest son had been quite a spendthrift, and had often asked his mother for money over the years, to assist him in his various business ventures. His mother (my client) had provided him with substantial amounts of money on several occasions, and when we sat down together and added it all up, the amount given was almost $50,000.

The elderly lady was now in her late seventies, and was living with her daughter, the youngest of the three children. The daughter had two of her own children and was staying at home to care for them and her mother, while her husband worked. The lady's other child, a son, shared in some of the caring responsibilities by for example taking her to the doctor or hospital as the need arose, and keeping in regular touch. Neither of these children had received any money from their mother, except gifts on birthdays and Christmas. As a mother, my client bemoaned the fact that her eldest son hardly ever contacted her, except on special occasions, or 'when he wanted something'.

She now wanted to make a Will that left her only asset, the old family home (which was now rented) to her daughter and the second son in equal shares. She figured that the home, which was worth around $150,000 should rightly go to these two children.

My advice

I understood why my client would feel the way she did. After all, not only did the eldest son not keep in touch with his mother, but he had also received significant amounts of money from her already.

However I also knew the danger of a Will that totally cuts out a close family member, such as a spouse or a child. These Wills really leave the way open for a Testator's Family Maintenance application to be brought before the Court after the Willmaker dies, by the person who has been left out.

I advised my client that if the eldest son was totally cut out, then this could well motivate him to contest the Will after she had passed away. The problem with him bringing an action is that both his legal costs, and the legal costs of the two other children in defending the action, are taken out of the Estate monies. Litigation is a very expensive exercise, and a real long and nasty court fight (which Estate litigation between aggrieved relatives can be) can cost well over $10,000, EACH!

My advice to the elderly lady was to leave her eldest son a small amount, say $10,000 in her Will, and to share the balance equally between the other two children (or even give the daughter a little more). In this way, the eldest son would not feel 'left out', and would have a much weaker action against the other children when the mother passed away. In addition, I drafted an Affidavit which explained why my client was providing unequal shares to her three children. This Affidavit is very valuable, as it is your one chance to 'speak from the grave' on why you did things a certain way.

If you are thinking of leaving out a relative in your Will, or have done so, consider having an Affidavit drawn up that explains your actions. If you would like to talk to a Lawyer about this or any other Wills and Estates matter, you can consult a Lawyer for FREE.

Simply access the online consult option in the right hand margin of this page or Click here.

What happened?

My client took my advice, and when she passed away several years later, the Estate went smoothly. Each child received their fair share of the Estate and the eldest son, whilst not incredibly happy with his share, had received legal advice that to fight the Estate for more would probably end up costing more than it was worth.

A nasty, expensive feud was probably avoided by some prudent planning and drafting years before.

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