Can you leave your children out of your Will?

Will disputes are becoming increasingly common due to the rise of blended families and strained relationships between parents and their children. While such disputes are growing in number, it’s important to understand how costly, uncertain and emotionally damaging they can be.

In New Zealand, individuals have considerable autonomy in deciding how to distribute their assets through their Will. However, if a Will maker chooses to entirely exclude close family members, especially children, those individuals may have legal grounds to challenge the Will.

Testamentary freedom vs your obligations

In New Zealand, while you have the freedom to distribute your assets as you see fit in your Will, the legal system upholds the rights of certain family members, particularly children, to make claims under the Family Protection Act 1955. This is because the law imposes a duty on Will makers to ensure that adequate provision is made for the proper maintenance and support of specific family members following the Will maker’s passing.

What happens if you exclude your children

If your children believe they have not been sufficiently provided for in your Will, they have the ability to challenge the distribution set out in your Will. The process often starts with negotiating with the executors of the estate. There are other legal avenues through the Court.  For a claim to succeed, the claimant must demonstrate that the Will maker has not made sufficient provision for their proper maintenance and support. However, there are circumstances where it is possible to exclude one or more children from your Will. There are also steps that can be taken to reduce the likelihood of such claims being successful.

Key factors the Court considers

When assessing whether a claim against a Will is valid, the Court examines a range of factors to decide if the deceased fulfilled their moral obligation to provide for the claimant. They may consider factors such as:

Financial needs

A claimant’s financial position is a key consideration when assessing claims. Courts assess the claimant’s income, assets, liabilities, and general ability to support themselves. If a child is financially vulnerable due to unemployment, low income, debt, or other hardship, they may have a stronger claim for provision from the estate. In contrast, an independent adult child in a stable financial position may have more difficulty demonstrating that they have a financial need.

Nature of the relationship between the claimant and the deceased

Courts will often examine the closeness and nature of the relationship between the deceased and the person making a claim against the estate. For children left out of a Will, relevant factors include whether there was estrangement, any emotional or financial dependence, or evidence of a close and ongoing bond. A child who had a strong relationship with the deceased, particularly one involving support or caregiving, may have a stronger claim than one who had little or no contact over many years. However, if the relationship between the claimant and the deceased was strained or non-existent, the Courts may still consider a claim and look closely at the reasons for the estrangement. For example, if there was a history of abuse or other serious misconduct that led to the relationship breakdown, the Court may find it reasonable that the claimant had no contact. This may have led to them not being adequately provided for.

The size and nature of the deceased’s estate

The value of the estate can significantly affect whether provision should be made for a disinherited child. A substantial estate offers greater scale for redistribution without significantly impacting other beneficiaries. Conversely, if the estate is limited and already fully allocated to dependants or others with greater needs, the Court may be less inclined to overrule the Will.

The deceased’s reasons for making the Will as they did

While testamentary freedom is an essential principle, Courts can consider the reasons a parent gave for excluding a child from their Will, particularly if these are recorded in a letter or statement accompanying the Will. Reasons such as estrangement, previous financial gifts, or disapproval of the child’s behaviour may carry some weight. However, such justifications must be balanced against legal and moral obligations to provide for close family members.

Any disability or special needs of the claimant

If a disinherited child has a physical or mental disability, chronic illness, or other special needs that limit their capacity to earn a living or live independently, this will be a compelling factor in their favour. Courts are generally more inclined to provide for vulnerable claimants whose wellbeing and quality of life may be significantly impacted without adequate provision from the estate.

Assistance by the deceased during their lifetime

If the deceased had previously provided substantial financial assistance to the child such as a property, business funding, or ongoing financial support, this may be considered in assessing whether there is a continuing obligation to provide for them in the Will. Lifetime gifts can sometimes be seen as satisfying, entirely or partly, the deceased’s moral duty to the child, depending on their nature and value.

The factors considered by the Court can be highly fact-specific, meaning the outcome often depends on the unique details of each individual’s situation. If you wish to learn more about the above, we would strongly encourage you to seek personalised legal advice from our solicitors who are able to take into account your specific circumstances and the needs of your family.

Time restrictions on claims

Claimants usually have 12 months from the date probate is granted to file a claim against the estate. This is when the High Court officially recognises the documents as the deceased’s final Will. It is important to act promptly if you wish to make a claim against the estate, as should the executor distribute the estate prior to your claim being made, recovering assets that have already been paid out to other beneficiaries becomes far more difficult. While late claims may still be considered under exceptional circumstances, they are significantly harder to pursue successfully.  

We can help

Understanding the balance between testamentary freedom and the moral duty to provide for family is paramount when estate planning.  If you require guidance on protecting or challenging a Will, the Estates Wills & Trusts team and Civil Litigation team at Denham Bramwell are experts in navigating the process by offering tailored advice to mitigate risks.

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Disclaimer: The information provided in this article is for general informational purposes only and does not constitute legal advice. While every effort has been made to ensure the accuracy of this content, it is not a substitute for professional legal advice tailored to your specific circumstances. You should consult a qualified legal professional before making any decisions based on this information.

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