Challenges to a Will by Adult Children

How relevant is the concept of achieving equality between children?

It is not uncommon when a person seeks to challenge the provisions of a Will for those responsible for administering the estate, and for the beneficiaries named in the Will, to question “why is it possible that a person’s wishes expressed in the Will can be upset by someone seeking to receive provision out of the estate?”

The short answer lies in the provisions of the Administration in Probate Act.  The Act enables an “eligible” person to seek provision out of the estate of a deceased person for their proper maintenance and support.

Children, including adult children, are “eligible” to challenge the provisions of a Will.  Whilst eligible it does not necessarily follow that their challenge will be successful.

In circumstances where there are a number of children the argument is sometimes made that there be “equality” between children.

Whilst a parent has a moral obligation to provide for their children it does not follow that they must treat their children equally.

It is important to note that an adult child, must establish that they have a financial need.  Even that is not sufficient to ensure success as a Court can only make provision to the extent that it is necessary for a persons “proper maintenance and support in all the circumstances”.  It follows that even if successful children may share in unequal proportions.

The Court cannot simply re-write the Will to ensure equality.  A decision of the Supreme Court of Victoria in 2019 “Firth v Reeves” illustrates that point.

The estate was large.  The deceased mother left her estate to her two children.  One to receive two thirds and the other one third.  The child receiving one third brought proceedings claiming that she ought receive half of the mothers estate.

The estate was valued at approximately $8 million meaning that she would receive approximately $2.7 million.

The Court found that the mothers Will had made sufficient provision for the child in providing her with one third of a very large estate.   In so finding the Court found that the deceased did not have a duty to treat her children equally; that the amount left to her was sufficient to meet her needs; and she did not establish any particular need that would warrant an increase in the provision made in the Will.

Naturally all cases are determined on their particular fact circumstance but claiming that “equality” should prevail is not a significant factor in many cases.

Advice on making Wills or in seeking to challenge Nevetts Lawyers Wills Estate Planning and Probate Group can provide appropriate advice.

Author: Peter Wilson