In New South Wales, when making a will, you can leave your estate to whoever you want.
If, for example, you want to make a will leaving all your estate to one of your children and not the others, or to a friend and not to your family, then you are able to do so.
However, under the New South Wales law and, in particular, the Succession Act 2006, certain persons (“eligible persons”) are able to make a claim on your estate if adequate provision for them has not been made.
The law provides a definition of “eligible persons” and one such category are “children”. The Supreme Court has dealt with a number of cases where children, normally adult children, have made a claim against their deceased parent’s estate. A body of law of previously decided cases provides some guidelines as to how a Court will deal with these claims.
- Every application by the adult children for further provision from a parent’s estate must be dealt with by the Court on its merits and on the evidence before the
- It cannot generally be said that a parent has an obligation to provide an adult child with a home. It has, however, been recognised there are circumstances in which there may be a moral obligation on the part of the parent, in particular circumstances, to make provision for an adult
- These are not inflexible rules, and always subject to consideration of the particular circumstances of each case. Including the size of the estate, any competing claims, and the adult child’s conduct and relationship with their deceased
- The relationship between a parent and a child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support as the bonds of childhood are
- The community expects parents to raise and educate their children to the very best of their ability while they remain children. Probably to assist them with a tertiary education when that is feasible. Where funds allow to provide them with a start in life such as a deposit on a home, although it might well take a different
- The community does not expect a parent in ordinary circumstances to provide an unencumbered house or to set his or her children up in a position where they can acquire a house unencumbered.
- The community does not expect a parent to look after his or her child for the rest of the child’s life and into
These are general guidelines set out by some of the decided cases. What these cases seem to be saying is that even though a parent may have some obligation to look after a child, what a Court is likely to order, if anything, is to be determined by community standards, the decided cases, and the matters to be considered by the Court as set out in the legislation.
The Court has the power to change the deceased parent’s will to make further provision for an “eligible person”, such as a child.