Adult children are demanding a greater share of their parents’ estates and are eating into the assets to fight for more money in the process. What starts as family members squabbling among themselves for more cash and property soon degenerates to airing dirty little secrets and other private information to bolster their chances in Court.
The Public Trustee, the judiciary and lawyers say the number of family members asking for a bigger slice of the family estate is increasing – at a rapid rate. This is largely due to more ‘blended’ families, the “it’s not fair” factor and greater assets, such as property and superannuation, are contributing to the increase in claims. Charities, caught in the middle of these family wars and often losing money gifted to them, are now fighting back.
In Queensland, a spouse, de facto, child, adult child, step children and some financial dependents have a right to claim for ‘further provision’ in an estate if they have been left out or have not been given enough by the deceased. Statistics on the number of people who made successful claims for family provision are not known because the majority of cases settle after mediation.
The Wills that tend to be the subject of these fights between families are the ones where the estate is not left to the children equally or nothing is left to the children at all or, in blended families, something is left to the one set of children but not the other set.
But economic pressures and access to legal information in modern society are increasing the number and ferocity of sibling struggles, according to the growing band of “elder” lawyers and mediators who specialise in the area.
“Thirty or 40 years ago, it was a huge thing to dispute a will, and only the rich did it.”
And a parent’s death doesn’t end the fighting; the value of the parental home has increased so dramatically over the decades that more adult children consider it worthwhile going to court over the estate, destroying whatever skerrick of good will may have survived.
Traditionally, adult children although able to make claims, have had to show a special need or special claim in order to succeed in a Family Provision Application.
An adult child will necessarily be in a different position to an infant child in the context of a maintenance claim. In the normal course, the obligation to maintain a child will diminish over time as the child grows and makes their own way in the world. As it has been observed, age is a relevant factor and ordinarily, an adult of any sex is necessarily in a different position from that of infants.
When considering a claim, the Court considers “the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the deceased and other persons who have a claim upon his or her Estate.
So if you are an adult or independent child who:
- Has conferred valuable benefits on a parent during your parent’s lifetime and have been left out of their Will; or
- Has been left out of your parents Will or received an unequal share and have a genuine need, and it is possible to meet such need without unfairness to the other beneficiaries to alleviate your need; or
- Is only seeking no more than a memento or keepsake of modest value
Please contact one of our experienced Estate Litigation Lawyers from to provide you with legal advice and guidance in making such a claim. Alternatively, if you are an Executor for an estate facing a potential claim, make sure you are using specialist lawyers in this area and not just the local lawyer who prepared the Will.
Contact our Department Manager Amanda Heather on direct telephone 07 5506 8245 or freecall 1800 621 071 or email Amanda on aheather@attwoodmarshall.com.au for further information.
