Can My Children Challenge My Will? What Australian Parents Need to Know
Many Australians assume that once they've written a Will, their wishes are guaranteed.
Unfortunately, that's not always the case.
Depending on the state or territory and the circumstances, certain eligible people may be able to make a claim against an estate if they believe they have not been adequately provided for.
This is one of the reasons estate planning should involve more than simply writing a Will.
Can a Child Challenge a Will?
Potentially.
The rules vary across Australia, so there isn't one national rule that applies identically in every state and territory.
In Victoria, for example, the Supreme Court has a specialist Testators Family Maintenance List for applications seeking further provision from a deceased estate under Part IV of the Administration and Probate Act 1958.
This doesn't mean every child can automatically overturn a Will.
A person must generally meet the relevant eligibility requirements and establish grounds for a claim under the applicable legislation.
Does Being a Child Automatically Mean You Get an Inheritance?
No.
Being someone's child doesn't necessarily mean you're guaranteed a particular share of their estate.
Estate planning can be particularly complicated where there are:
Adult children
Stepchildren
Estranged children
Blended families
Previous marriages
De facto relationships
The law in each jurisdiction needs to be considered.
What Can Increase the Risk of a Dispute?
Some circumstances may make an estate more vulnerable to challenge.
For example:
A dramatic change to an existing Will
A child being excluded without explanation
Unequal distributions
Family conflict
Questions about the deceased's capacity
Suspicions about undue influence
A poorly prepared Will
This doesn't mean these circumstances automatically invalidate a Will.
It simply means careful planning becomes particularly important.
Should You Treat Your Children Equally?
Not necessarily.
Equal isn't always appropriate.
For example, you may want to:
Leave more to a financially vulnerable child
Provide for a child who has cared for you
Treat children from different relationships differently
Protect an inheritance for grandchildren
The important point is to obtain appropriate legal advice and ensure your intentions are properly documented.
Communication Can Help
Money and inheritance can be uncomfortable topics.
But explaining your general intentions during your lifetime can sometimes reduce the shock and misunderstanding that occurs after death.
This doesn't replace a properly drafted Will.
It can, however, help your family understand your intentions.
👉 Related:
How to Avoid Family Disputes Over Your Estate
What About Superannuation?
Your Will doesn't necessarily control your superannuation.
Superannuation death benefits can involve separate beneficiary arrangements.
This is why your Will and superannuation nominations should be reviewed together.
👉 Read:
Binding Death Benefit Nominations Explained
Worried Your Estate Plan Could Create Family Conflict?
If you have a blended family, multiple children, significant assets or an unequal inheritance plan, it's worth reviewing the entire structure rather than simply updating your Will.
👉 Book A Consultation Today
Final Thoughts
You cannot guarantee that nobody will ever challenge your estate.
But good planning can reduce uncertainty.
A comprehensive estate plan should consider:
Your Will
Superannuation
Beneficiary nominations
Powers of Attorney
Your choice of executor
Family circumstances
Your tax position