Can Angie block an estranged daughter from her will without consigning her other children to a drawn-out challenge after her death? Estate planning lawyer Rod Cunich has the answer.
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Q. Angie
Is it possible to cut an estranged offspring from our wills? We have five children, including her. We would like to do this, or to at least not leave her much, as she will just squander it so that she feels important.
A. You can leave your daughter out of your will – it’s purely your choice who you leave your wealth to. If you do leave her out, you should consider preparing a formal statement setting out all relevant facts (in your own words) so they are available to any court that is asked to investigate the issues.
The legislation in each state makes specific provision for such a statement and expert legal advice is required to prepare such a statement appropriately.
Read: Can Linda amend her will this way?
That said, there is nothing you can do to prevent your daughter challenging your will if you leave her out or leave her only a small gift. All children have a statutory right to challenge a parent’s will.
She has no right, however, to a particular share of your estate. Even though she has a right to challenge your will, she would need to satisfy a court that she is entitled to a share when all the competing interests are considered.
Your daughter’s chances of success depend on a court considering more than 20 issues when determining whether you should have made provision for her and, if so, how much.
Read: Was bank wrong on funeral costs?
A long estrangement with a daughter is an important factor a court will take into consideration, but it is not decisive.
I recommend that you seek the advice of a specialist estate planning lawyer to assist (you can find accredited specialists c/- your state law society or law institute).
Rod Cunich is a lawyer and author with more than 30 years’ experience who specialises in estate planning.
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Daughter’s inlaws had cared for his parents for many years and continued after the father died.
A sibling in Queensland would have them up for holidays and kept in touch. A third had not spoken for 26 years although they had been given money to help buy a house originally.
When the mother died this third sibling arrived at the funeral with her family and asked about the will on the day.
She even had the cheek to ask if the rooms they had be built on to accommodate the parents were paid by them. They were were not wealthy and the answer was “No”.
When they found out about the cost of defending in court which was threatened even though the mother had explicitly put in the will why she had left her out they thought that it wasn’t worth fighting in court or even mediation which was still costly so they gave her a third share.
I can never understand the greed some people have. My siblings estranged me from my father, as no matter how many time we talked he would come out with accusations about differing things. I do think he may have had the beginnings of dementia, but nothing I said could change his mind. In the end I just gave up and didn’t talk to him – as the last time we spoke I was ambushed by my siblings, who physically attacked me as I was leaving. My niece who lived behind her grandfather would update me about his health etc. But to make sure I could not contest, he sold the house a couple of years before he died to my siblings. So the addage you can choose your friends but not your family rings true.
I could say I had a miserable childhood – the eldest of 6 siblings. Though my siblings were treated completely different. I chose my own adult path, much to my parents disdain, and never once can remember a kind or supportive word. I had to struggle for everything I had. Of course, when I became a single parent (my fiance left me 2 months before daughter was born), the scorn just got worse. So when my daughter became an adult, after a few family conflicts, I had had enough. At age 49, I decided to have MY life.
I told no-one, and chose to leave the state, and make my life elsewhere, working hard, always on my own, to have a basic, secure life. After I left the state, NOT ONCE, NOT ONE SINGLE TIME did any member of my family phone me to ask where I was. Mutual friends would tell me I was torn to shreds for ‘leaving & not supporting my daughter’ (who was by then 24). It has been over 22 years since I had ANY contact with ANY of my family. When my parents passed away a few years ago, within 6 months of each other, I was specifically excluded from the will, with some very hurtful and totally wrong comments. I chose to contest the will, and did so – barely got a cent. BUT – that didn’t bother me. What DID make my siblings more angry was that their share was considerably reduced after legal fees, etc were deducted.
My daughter chose not to have anything to do with me as I cut off the money pit so that I could buy my first house. She got the first 23 years of my life – now it was time for me. Boy, was I called every name under the sun. So I have made up a will, and hopefully what is left will go to my friends who have been there for me. Some I have known for over 40 years.