Questions about potential Will challenge come in many forms, but they often boil down to two really common scenarios: the re-married parent, and the estranged adult child.

In this article, we will take a look at each of these and how they often work out.

The Re-Married Parent

The scenario

Chris has three adult children from his first marriage. He owns the family property and some cash. He has re-married Sarah, who also has adult children from her first marriage, but who is less financially well off. Chris and Sarah prepare Wills gifting everything to one another and then equally between all of their children. After 5 years of marriage, Chris passes away.

The concern

Can Chris’ children challenge him giving everything to Sarah? What if Sarah changes her Will after Chris’ death to exclude Chris’ children?

It should be noted that Chris and Sarah could probably benefit from some slightly more sophisticated estate planning to try to safeguard against this situation. But if they want to keep things simple, what happens then?

First, in the absence of any additional needs, Chris’ children are likely to face an uphill battle to challenge him giving his estate to Sarah. Generally, the Courts have favoured spouses over adult children and want to ensure they provide them with a place to live and money to live off. It is most likely the Courts would heavily favour Sarah and so we would not usually recommend a challenge in these circumstances, although it does depend on the size of the estate and the particular facts.

So can Chris’ children then challenge Sarah’s Will if she latter excludes them? Generally, the answer is yes, assuming that Chris and Sarah were still in a relationship with one another when Chris passed away. Chris’ children are considered step-children of Sarah, and they are eligible to make a claim against Sarah’s Will.

However, how successful they would be in such a claim depends a lot on the relative circumstances of all of the potential beneficiaries, and how able they are to provide for themselves.

The Courts do recognise that Chris’ children stepped back to allow his estate to go to Sarah, and this effectively passes a moral duty to Sarah to then provide for Chris’ children. They take into account factors such as the ongoing relationship between Sarah and Chris’ children after Chris’ death. They also recognise that Sarah’s freedom of testation (the ability for her to make her Will as she wishes) is important. However, the degree of financial need of all of the beneficiaries is considered a critical factor. In this case, a careful examination of the needs of Sarah’s children against Chris’ children would be considered by the Court.

On the whole, there is no automatic right that Chris’ children would be entitled to 50% of Sarah’s estate simply because Chris left his estate to Sarah. The needs of each of the beneficiaries are likely to be the most important factor.

The Estranged Adult Child

The Scenario

James and Mary have 3 adult children. Two of them are in stable life situations, however the youngest, Sally, has a history of addiction problems and mental health challenges. James and Mary have financially supported her periodically over the years to help her, but she has cut herself off from them and there has been no contact from her for the last 2 years.

The Concern

While James and Mary want to provide for Sally, they feel they owe their other two children more and would like to favour them in their Wills once they both pass away. Can Sally challenge the Will?

The short answer is yes, Sally can challenge the Will and more so, she is likely to be successful. In determining a “moral duty to provide”, the Courts are going to not only take into account that Sally is a child of James and Mary, but also that she has greater needs than her elder siblings.

The estrangement and the wishes of James and Mary are relevant, and the Courts would take these into account. There is a notion of “disentitling conduct”, and the nuances of Sally’s estrangement would have to be examined. For example, whether that estrangement arose from James and Mary’s side, or from Sally’s side, could be a relevant factor.

However- and most clients do not like to hear this- the fact that James and Mary have provided financial support to Sally can actually strengthen her challenge case. She can argue that because of that support during her lifetime, there is an increased obligation on James and Mary to continue that support after her death. This is likely to be a shock to James and Mary, who may well consider that they have given enough to Sally during her lifetime and so would like to balance that out in the Will to favour the other children.

The fact that Sally has greater medical/care needs than her siblings is something the Courts would likely give considerable weight to.

In a case such as this, it is indeed possible that if Sally challenged, she could end up with at least an equal share to her siblings and possibly even a greater share because of her needs.

 

In the third part of this series, we will explore some strategies to potentially minimise Will challenges.