Can Adult Children Contest a Will?
Can an adult child contest a Will in Queensland?
Yes. An adult child may be eligible to make a family provision application if adequate provision has not been made for their proper maintenance and support. Being an adult child does not create an automatic entitlement to an inheritance, and making a claim does not mean the claim will succeed. The court considers the circumstances of the applicant, the deceased, the estate and other relevant people before deciding whether further provision should be made.
Parents making a Will often wonder: "Can my adult children contest my Will if I don't leave them what they expect?"
The short answer is yes, an adult child can potentially make a claim against your estate in Queensland.
That doesn't mean an adult child can simply challenge your Will because they don't like what you've decided.
An adult child may be eligible to make a family provision application if they believe adequate provision has not been made for their proper maintenance and support.
Whether they succeed is a separate question.
The court considers the circumstances of the family, the deceased person's estate, the applicant's circumstances, the needs of other beneficiaries and a range of other factors before deciding whether further provision should be made.
So, if you're wondering whether you can leave an adult child out of your Will, the answer is more complicated than simply "yes" or "no".
Quick Answer
Can an adult child contest a Will in Queensland?
Yes. An adult child can potentially make a family provision application under the Succession Act 1981 (Qld) if they believe adequate provision has not been made for their proper maintenance and support.
Being an adult child does not automatically mean they are entitled to an inheritance.
It also doesn't automatically mean their claim will succeed.
The court looks at the circumstances of the deceased person, the applicant, the estate and the other people who may have an interest in the estate.
What Does It Mean to "Contest" a Will?
"Contest the Will" is a common phrase, but it can describe different types of legal dispute. For estate planning purposes, two important categories are:
Challenging the validity of the Will
This can involve arguments about whether the Will was properly made or whether the person making it had the required capacity or understanding.
Making a family provision application
This involves accepting that the Will is valid but arguing that the provision (ie. gift from the Will) made for the applicant is inadequate.
These are different legal issues.
An adult child who makes a family provision application isn't necessarily saying "Mum's Will isn't valid." They may be saying, "I accept that this is Mum's Will, but I don't believe it makes adequate provision for me in the circumstances."
Legally, that distinction is important.
What Is a Family Provision Claim?
Queensland's succession laws allow the court to make an order where adequate provision has not been made from a deceased person's estate for the proper maintenance and support of certain people, including a child of the deceased.
The application is generally called a family provision application.
The court can make an order providing further provision from the estate if the requirements are met. That could involve:
a lump sum payment
property
an increased share of the estate
other forms of provision the court considers appropriate.
The existence of the claim doesn't mean the applicant automatically receives what they are asking for.
The court decides whether an order should be made and, if so, what provision is appropriate.
Can an Adult Child Make a Family Provision Claim?
Yes.
The Queensland legislation specifically allows a child of the deceased to make a family provision application where adequate provision has not been made for their proper maintenance and support.
Importantly, "child" does not mean "minor child". An adult child can potentially make a claim.
This is one of the reasons parents sometimes misunderstand the level of protection they have when deciding how to distribute their estate.
Your child turning 18 doesn't automatically remove the possibility of a family provision claim.
Does an Adult Child Have an Automatic Right to an Inheritance?
No.
This is an important distinction. There is no general rule in Queensland that says "Every child must receive an equal share of their parent's estate."
You can make different gifts to different children. You can leave your estate to your spouse. You can leave assets to charities. You can establish trusts for beneficiaries. You can make different arrangements for different children based on your circumstances and your wishes.
An adult child may still have standing to bring a family provision application, however, if they meet the requirements. Being able to make a claim is different from being entitled to inherit.
What Does the Court Consider?
There isn't a set formula that tells you exactly when an adult child's claim will succeed.
The court considers the relevant circumstances of each case. This can include matters such as:
the applicant's financial position
their income and assets
their financial needs
their age
their health
their capacity to earn income
their relationship with the deceased
the nature and extent of any contributions they made to the deceased or their estate
the size and nature of the estate
the needs and circumstances of other beneficiaries
the deceased's obligations and responsibilities to other people
any other relevant circumstances.
This is why two families with apparently similar Wills can have very different outcomes.
Does the Size of the Estate Matter?
Yes. The size and nature of the estate are relevant to the question of what provision, if any, should be made.
A $200,000 estate presents very different circumstances from a $5 million estate, for example.
The court deals with the facts and circumstances of each estate. It isn't deciding what would have been fair if the deceased had accumulated more wealth.
The estate may also include different types of assets, and the practical consequences of making provision from a particular asset can be relevant.
What If Your Adult Child Is Financially Independent?
Financial independence can be relevant. An adult child who has:
a high income
substantial assets
secure housing
significant superannuation
a successful business
may have a different level of financial need from an adult child who is struggling financially.
That doesn't mean financial independence automatically prevents a claim. It is one factor among the broader circumstances the court may consider.
What If Your Adult Child Is Wealthy?
The same principle applies. An adult child's financial position may be relevant to whether further provision is required for their proper maintenance and support.
A financially secure adult child may have less financial need than a sibling who has limited assets and income. The court considers the circumstances of the individual applicant.
What If You Have One Child Who Needs More Support?
This is where estate planning can become particularly important. You may have two adult children whose circumstances are very different.
For example:
Child A
owns a home
has a substantial income
has significant investments
is financially independent.
Child B
has limited assets
has lower income
has ongoing support needs
relies on you for financial assistance.
An equal inheritance may not necessarily reflect what you consider appropriate. Your Will can be structured to take those different circumstances into account, if that accords with your wishes.
A testamentary discretionary trust may also provide flexibility around how an inheritance is managed for beneficiaries. Advice about the strategy of your estate should be sought from your estate planning lawyer.
What If You Have an Estranged Adult Child?
This is a common question. Perhaps your adult child:
hasn't spoken to you for years
has chosen to have no relationship with you
lives overseas
has been estranged from the family
has had a serious falling-out with you.
Can they still make a claim? Potentially, yes.
Estrangement does not automatically prevent an adult child from being eligible to make a family provision application. The nature and length of the relationship between the deceased and the applicant can be relevant to the court's assessment.
That means if you're intentionally making little or no provision for an estranged child, the circumstances surrounding that decision should be considered as part of your estate planning. Advice about the strategy of your estate should be sought from your estate planning lawyer.
What If Your Adult Child Has Treated You Badly?
You may have very strong reasons for wanting to leave an adult child out of your Will. Perhaps the relationship has broken down or there has been longstanding conflict. Perhaps you have provided substantial financial support during their lifetime and don't want to provide further financial assistance.
Those circumstances may be relevant. They don't, however, create an automatic rule that prevents the child from making a claim.
This is another reason why getting advice about your circumstances is important. Advice about the strategy of your estate should be sought from your estate planning lawyer.
What If You've Already Given One Child Significant Financial Help?
This can be relevant when preparing your estate plan. For example, perhaps you've:
paid off a child's mortgage
helped them buy a home
contributed to their business
paid substantial education costs
provided ongoing financial support.
You may want that history taken into account when deciding how your estate should be divided. Your estate planning lawyer can discuss whether and how those circumstances should be documented and reflected in your estate plan.
It is much better to consider this while you're making your Will than to leave your family trying to reconstruct your intentions after your death.
Can You Prevent an Adult Child from Contesting Your Will?
You cannot simply put a clause in your Will saying: "No one is allowed to contest my Will."
A clause like that does not automatically prevent an eligible person from making a family provision application. The better approach is to consider the risk as part of the estate planning process. That can include:
understanding your family circumstances
considering the financial circumstances of your beneficiaries
documenting relevant information
considering how your estate is structured
preparing your Will carefully
keeping appropriate records of your intentions.
In some circumstances, a supporting documentation may be appropriate. The purpose isn't to create a document that prevents a claim. Rather, it is to create a clearer record of your circumstances and intentions. Advice about the strategy of your estate should be sought from your estate planning lawyer.
Should You Explain Why You Are Leaving an Adult Child Out?
If you're intentionally excluding an adult child, this is something that should be discussed with your estate planning lawyer.
There can be value in documenting relevant circumstances, particularly where there is a foreseeable risk of a family provision claim. For example, your circumstances might include:
a longstanding estrangement
previous financial support
an adult child's significant financial resources
your responsibilities to another beneficiary
the needs of another child
contributions made by another beneficiary
promises or arrangements made during your lifetime.
The appropriate way to document these circumstances depends on your situation. Advice about the strategy of your estate should be sought from your estate planning lawyer.
What About a Letter of Wishes?
A Letter of Wishes can provide a place to record additional information about your estate plan.
For example, it can explain relevant family circumstances and provide guidance about your intentions. It does not replace your Will, and it does not prevent an eligible person from making a family provision application. It can, however, form part of a broader estate planning strategy.
This is particularly relevant where your family circumstances are complicated or you are making unequal provisions between beneficiaries.
Can You Leave Everything to Your Spouse?
Yes, you can make a Will leaving your estate to your spouse. That doesn't necessarily mean an adult child is prevented from making a family provision application.
An adult child may still be eligible to make a claim depending on the circumstances. The court can consider the needs of the surviving spouse alongside the needs of the adult child and other relevant circumstances.
What About Blended Families?
Blended families can present additional estate planning considerations. You might have:
children from a previous relationship
stepchildren
children with your current partner
a former spouse
a current spouse
assets accumulated before and during different relationships.
In these circumstances, simply dividing your estate equally between "the children" may not achieve your desired outcome.
The relationships between the people involved, their financial circumstances, and your obligations to them can all be relevant. A carefully structured estate plan can help you address these issues before they become an estate administration problem.
How Long Does an Adult Child Have to Make a Claim?
In Queensland, a family provision application generally needs to be commenced within 9 months after the deceased person's death, unless the court allows otherwise.
There are important provisions governing when an executor or other personal representative can safely distribute estate assets where there has been no notice of an application or intended application.
This is one reason estate administration shouldn't simply involve distributing the estate as soon as probate is obtained. It is important for the executor to understand the potential claims against the estate and the relevant timeframes.
What Happens If an Adult Child Makes a Claim?
A family provision application is a court proceeding. In Queensland, these applications are dealt with in the Supreme Court. The Queensland Courts' practice direction provides specific procedures for family provision applications, including requirements for supporting affidavits and information about people who may be eligible or have an interest in the estate.
The parties may negotiate a settlement. If an agreement cannot be reached, the matter may proceed through the court process. This can involve significant legal costs, time, and emotional stress for the people involved. This is one reason careful estate planning is worthwhile, particularly where there is a foreseeable risk of dispute.
Does Contesting a Will Mean the Will Is Invalid?
No, not necessarily. An adult child making a family provision application may accept that:
the Will is valid
you had capacity
you knew what you were signing
you understood your estate plan.
Their argument may simply be that the provision made for them was inadequate in the circumstances. A family provision claim therefore doesn't necessarily attack your ability to make your own decisions. It asks the court to consider whether the estate made adequate provision for the applicant.
What Can You Do When Making Your Will?
If you are concerned that an adult child may make a claim against your estate, there are steps you can take while you're alive.
1. Get proper estate planning advice
Don't rely on a generic Will template if your family circumstances are complicated.
Your estate plan should take your particular circumstances into account.
2. Think about your beneficiaries as a whole
Consider:
who you have obligations towards
who is financially dependent on you
who has significant financial resources
who may need additional protection
who has contributed to your wealth or care.
3. Consider whether a trust is appropriate
A testamentary discretionary trust can provide flexibility and protection for certain beneficiaries.
It can be particularly useful where beneficiaries have different circumstances or there are concerns about asset protection.
4. Keep your estate plan up to date
Your circumstances can change.
A decision that made sense five years ago may no longer reflect your family or financial circumstances.
5. Document relevant circumstances
If there is a foreseeable risk of a family provision claim, talk to your lawyer about what should be documented and where.
This can help preserve relevant evidence about your circumstances and intentions.
What If You Are an Adult Child Thinking About Making a Claim?
If you're an adult child who believes you have not been adequately provided for, don't assume that being left out of a Will automatically means you have a successful claim.
The question is whether you are eligible and whether the circumstances justify an order for further provision. Your own:
financial circumstances
health
age
earning capacity
relationship with the deceased
existing provision
contributions
may all be relevant.
The size and nature of the estate and the circumstances of other beneficiaries will also matter. You should obtain independent legal advice about your individual circumstances. Act quickly to ensure you do not fall outside the relevant timeframes for providing notification of your intention to bring a claim and/or filing your application with the Court.
Frequently Asked Questions
Can an adult child contest a Will in Queensland?
Yes. An adult child may be eligible to make a family provision application if adequate provision has not been made for their proper maintenance and support. This does not mean they are automatically entitled to an inheritance or that their claim will succeed.
Can I leave my adult child out of my Will?
You can make a Will that excludes an adult child. However, an eligible adult child may still be able to make a family provision application against your estate.
Does an adult child have to prove they were financially dependent on their parent?
No. Dependency is not the only basis on which an adult child can make a family provision application. The legislation expressly includes a child among the people who may apply where adequate provision has not been made for their proper maintenance and support.
Can an estranged child contest a Will?
Potentially, yes. Estrangement does not automatically prevent an adult child from making a family provision application. The circumstances and nature of the relationship may be relevant to the court's decision.
Can I stop my child from contesting my Will?
You cannot guarantee that an eligible person will be unable to make a family provision application simply by including a clause in your Will. Careful estate planning can help you identify and manage the risks.
How long does an adult child have to contest a Will in Queensland?
A family provision application generally must be commenced within 9 months after the deceased person's death, unless the court allows otherwise.
Does leaving everything to my spouse prevent my children from making a claim?
No. An adult child may still be eligible to make a family provision application. The court can consider the needs and circumstances of the surviving spouse alongside those of the adult child and other relevant people.
Is a family provision claim the same as challenging the validity of a Will?
No. A family provision claim generally accepts that the Will is valid and asks whether adequate provision was made for the applicant. A challenge to validity involves different legal issues.
To Summarise
You are allowed to make your own decisions about who receives your estate. There is no rule that says every adult child must receive an equal share of your estate.
There is, however, a legal framework in Queensland that allows eligible people, including adult children, to seek further provision from an estate where adequate provision has not been made for their proper maintenance and support.
If you're considering leaving an adult child out of your Will, or leaving your children unequal shares, that decision deserves proper estate planning advice. The goal is to understand the potential risks while you are alive, consider your family circumstances carefully, and structure your estate plan with those circumstances in mind.
Once you're gone, your family can't ask you why you made the decisions you did.