In NSW, parents are under no legal obligations to leave an inheritance for their adult children. However, the succession legislation is underpinned by the assumption that children are the natural beneficiaries of their parents' estates and adult children are automatically eligible to contest a will under family provision.
Family Provision: Adult Children
A testator is generally entitled to dispose of their estate however and to whomever they wish. Thus, parents are under no legal obligation to provide for their adult children. However, this testamentary freedom is not absolute and adult children may be able to contest their parents will under the family provision legislation.
Under the NSW Succession Act, children of the deceased are automatically eligible to make a family provision claim. However, it order for their claim to be successful they must establish that they have been left without adequate provision for their 'maintenance, education or advancement in life'. Arguably it may be more difficult to establish the need of an adult child, as opposed to a minor child, as prima facie an adult child is expected to be capable of supporting themselves.
Nevertheless, the applicable legal principles do not change and the case law is littered with successful family provision claims by adult children. Thus, although parents are not obligated to provide for their adult children, an adult child will be able to successfully challenge the distribution of the estate where they can establish the requisite need.
The Relevant Legal Principles
The courts have articulated a number of general principles which will be relevant to family provision claim made by an adult child. These principles are as follows:
While the parent-child relationship changes when a child leaves home, an adult child remains a natural recipient of parental ties, affection or support. Further, where an adult child is dependent on a parent, there is a community expectation that a parent will make a provision which will fulfil the ongoing dependency after their death.
The character and conduct of the adult child may be a relevant consideration. However, the mere fact of estrangement or other disentitling conduct will not prevent an adult child from establishing a family provision claim, particularly where the adult child can establish significant needs.
The court may have regard to the deceased's moral obligations or moral duty to provide for their children. However, an adult child will still be required to establish that they have been left without adequate or proper provision and the court will not make a family provision order on the basis of a moral obligation in circumstances where the adult child is comparatively well off or capable of supporting themselves.
Ordinarily, there is a community expectation that a parent will raise and educate their children while they are children and that, where funds allow, they will assist them with tertiary education and provide them with financial support to start in life.
Similarly, while, parents are not expected to provide unencumbered financial assistance to their adult children nor to provide for them or look after them for the rest of their lives, when a child falls on hard times, the community may except a parent to provide a buffer against contingencies.
An adult child does not need to show some special need or special claim to make a successful application for family provision.
However, If the adult child has a lack of reserves to meet demands including ill health or the ordinary vicissitudes of life or has a limited earning capacity, this may increase their claim on their parent’s estate. Similarly, if an applicant has an obligation to supports other such as dependent children, this will be a relevant factor in determining what would have been an appropriate provision.
Parents are not legally obligated to provide an inheritance for their adult children. However, a failure to do so in circumstances where the child is in poor financial circumstances or is suffering from substantial health issues, may result in your will being successfully challenged under the family provision legislation.
DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.