Making provision for adult children in Wills is a tricky area. In the post, we look at some of the critical factors to consider when preparing a Will (or updating your existing Will) when your children are adults.
1. Moral duty of parents to their children
Where adult children are concerned, the first question to consider is does the willmaker have a moral duty to the adult child?
Ordinarily, the community expects a parent to raise and educate a child to the best of their ability. But, normally, it is not expected that a parent provide a mortgage free home or to look after a child for the rest of the child’s life and into retirement.
However, when the adult child falls on hard times (and assets are available) the community (and Courts) may view it as reasonable for a parent to provide a barrier against the contingencies of life in their estate for their adult children.
2. The behaviour of the adult children toward the parent
There can also be ‘disentitling conduct’ to consider when drafting the Will. This is where the adult child has behaved badly towards the parent. This might include estrangement - where the adult child and the parent have not been in contact for an extended period of time, mistreatment or abuse of the parent by the adult child, or the criminal behaviour of the adult child.
If this type of conduct has occurred, the willmaker may choose to leave less or nothing from their estate to the adult child. The Courts also have the power to dismiss a claim against the estate where there has been disentitling conduct.
3. Treating Children Equally
When making Wills, our clients are often faced with a decision: whether to leave equal amounts to each of their adult children or to give more to one child than another. It may be that one child has undertaken a disproportionate amount of care for the parent in their old age, and the parent wants to recognise this or perhaps there is a view that one child needs the money more than others.
A starting point on this issue is that there is no ‘rule’ that children must be treated equally in a Will.
Courts have adopted the view that the needs of the individual child for his or her proper maintenance and support in all the circumstances of the case are what is important. Equality is not something that a Court is trying to achieve in Will challenge cases, though in some cases (e.g. where an estate is not large enough to provide appropriately for all children) it will be a consideration.
4. Every situation is different
The delicate question of how best to provide for adult children in Wills is unique in each case. Our experience is that our clients derive significant benefit from discussing these issues with an experienced lawyer, who can consider their unique situation and provide advice on ensuring the will makers wishes for their estate are carried out while minimising the risk of future challenges to the Will.