A parent is legally entitled to disinherit their children. However, they cannot prevent their children from contesting a will under the family provision regime.

Disinheriting Your Children

In NSW, testamentary freedom is the cornerstone of succession law, and thus, at law, a parent is entitled to disinherit their children. However, disinheriting your child is not as simple as leaving them out of your will. While the law does not place any positive obligation on a parent to provide for their children in their will, the family provision regime provides an avenue for a disinherited child to contest the will.

Under the Succession Act, children are automatically eligible to contest their parent’s will by way of a family provision claim. A child’s eligibility to make a family provision claim is not affected by the fact of estrangement or other disentitling conduct, that the children are adults, nor that the deceased has demonstrated a clear intention to disinherit the child.

Provided that your child can show that they need provision from the estate in order to support or enable their maintenance, advancement in life and/or education, they will be able to successfully contest your will.

Preventing a Disinherited Child from Contesting Your Will

While your child will be eligible to contest your will; the following strategies may be employed to prevent, or minimise the chance of, a will contest.

1. Statement of Testamentary Intention

Include a statement in your will or otherwise, which sets out your reasons for disinheriting their children. Such a statement will not prevent your child from contesting the will, however, it may reduce the claim’s potential success. 

2. Transfer your Property Prior to Death

If you transfer your property to your intended beneficaries before you die, this will disencourage your child from contesting your will by ensuring that the estate has no real value. However, note that in NSW the property must be gifted at least 3 years prior to your death or it may be classed as Notional Estate. 

3. Leave a Token Provision

Include a token provision to your child in your will. Although, while a token provision may discourage your child from contesting your will, it may not be deemed proper or adequate provision at law and thus, it will not remove your child's legal right to contest your will.

The Takeaway

A parent may disinherit their children; however, a disinherited child cannot be prevented from contesting the will. Even if the above strategies are employed to minimise the risk of a will contest, a child will still be able to successfully claim family provision if they can show that they have been left without adequate or proper provision for their maintenance, education or advancement in life.

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.